https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7000

Republic v Kieri (Criminal Case E021 of 2024) [2026] KEHC 7000 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 7000 (KLR) Republic of Kenya In the High Court at Kisii Criminal Case E021 of 2024 Sifuna Nixon, J May 19, 2026 Between Republic Prosecutor and Abel Robert Kieri Accused Ruling 1.This case was partly-heard with three prosecution witnesses having testified; out of the six listed. The hearing proceeded before the then trial Judge Odera J. Wo has since been transferred to another station. 2.When this case came up before me on 28th April 2026, I directed that directions be taken under Section 200 of the Criminal Procedure Code (Cap 75 Laws of Kenya); as to whether the case should start de novo, or proceed from where it had reached. 3.When put to election, the Accused stated that the case should start de novo. As that he had no confidence in the previous trial judge who took the evidence. Also that he had never been served with any document in this case. 4.That request was opposed by the prosecution counsel Mr Njeru. Who in opposing the request, stated that the Accused had never applied for recusal or transfer to another Judge. Mr Njeru further stated that it might be difficult for the State to procure those witnesses again. Further that it is not only about the rights of the Accused, and that the victims also have rights. Analysis and Determination 5.Section 200 of the Criminal Procedure Code allows the Accused to elect whether a partly-heard case should proceed from where it had reached, or start de novo. It need be however, clarified that the election is neither binding on the court; nor does it confer upon the Accused an absolute right to dictate to the court how the case should proceed. 6.In determining whether to start de novo or proceed from where the case had reached, the court will consider among other things, not only the opinion of the Accused and the narrow prism of the rights of the Accused, but also practicality; the interests of the complainant or victim; as well as the wider interest of justice generally. 7.Except where it is reasonably impracticable, or is against the interest of justice, or is likely to result in a miscarriage of justice, where the case has proceeded substantially as in this case, the court will be more inclined to direct that the case proceeds from where it stopped. The factors to be considered in whether to start the case de novo or to proceed from where the case had reached, include the following:a.The extent to which the case had proceeded;b.The duration case had taken- from inception to where it had reached;c.The number of witnesses that had testified, and the number of witnesses that have remained;d.The availability of the remaining witnesses, as well as the likelihood of procuring them without delay;e.The type of witnesses that have already testified, e.g if any of them were under the witness protection program;f.The comparative demonstrable prejudice the Accused is likely to suffer if the case were to proceed from where it had reached; andg.Where it is reasonable, the balance of convenience. 8.In my considered view, starting de novo should be an exception rather than the norm; and should be opted for in the most compelling and exceptional circumstances. But not as a matter of course, or mere option. It must be justified by reasonable and legally sufficient grounds. 9.As the court is a master of its processes it could not have been the intention of the law-makers that Section 200 of the Criminal Procedure Code arrogate to the Accused a right to take over and drive proceedings. His election is expected to be measured, reasonable, and neither absolute, capricious, arbitrary, or oppressive. Especially in the post-2010 Constitutional dispensation, where the rights of victims have been mainstreamed alongside those of the Accused. 10.For the aforegoing reasons, the Accused’s request for this case to start de novo, is hereby declined. Hence it is hereby directed that this case proceeds from where it had reached. DATED AND DELIVERED AT KISII ON THIS 19TH DAY OF MAY, 2026.PROF (DR) NIXON SIFUNAJUDGE