[2023] KEHC 18349 (KLR)
The court held that, following a change of trial judge, the accused are entitled to request the recall of witnesses under section 200(3) of the Criminal Procedure Code, but must show sufficient cause for such recall. In this case, sufficient cause was shown only in respect of the minor witness (PW1), as the current...
Source-derived case information.
- Citation
- [2023] KEHC 18349 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Kimathi; Defendant: Lawrence Mason; Defendant: Don Mugambi Kimathi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2017
- Procedural Posture
- Criminal Case / Ruling on Application to Recall Witness After Change of Trial Judge
- Outcome
- Application to recall minor witness (PW1) allowed; trial to proceed from previous stage with recall of PW1 only.
- Judges
- EM Muriithi
- Legal Topics
- Recall of Witnesses, Change of Judge, Fair Trial Rights, Voire Dire Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Kimathi
Defendant
Lawrence Mason
Defendant
Don Mugambi Kimathi
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Recall Witness After Change of Trial Judge
Legal Issues
- 1 Whether the accused are entitled to have witnesses recalled following a change of trial judge.
- 2 Whether sufficient cause has been shown to justify the recall of the minor witness (PW1) for voire dire examination.
Ratio Decidendi
The court held that, following a change of trial judge, the accused are entitled to request the recall of witnesses under section 200(3) of the Criminal Procedure Code, but must show sufficient cause for such recall. In this case, sufficient cause was shown only in respect of the minor witness (PW1), as the current judge must conduct the voire dire examination and observe the witness's demeanor to ensure a fair trial. The court therefore allowed the recall of PW1 for voire dire and subsequent examination, but declined to recall other witnesses for whom no justification was provided. The trial will proceed from the stage reached before the previous judge, subject only to the recall of PW1.
Court Disposition
Application to recall minor witness (PW1) allowed; trial to proceed from previous stage with recall of PW1 only.
Orders
- The trial shall proceed from the stage reached before the previous judge, subject only to the recall of PW1, the minor witness, for voire dire examination and subsequent examination and cross-examination as necessary.
- Directions as to further hearing shall be taken in consultation with counsel for the prosecution and the defence.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v Kimathi & 2 others (Criminal Case 34 of 2017) [2023] KEHC 18349 (KLR) (31 May 2023) (Ruling)
Neutral citation: [2023] KEHC 18349 (KLR)
Republic of Kenya
In the High Court at Meru
Criminal Case 34 of 2017
EM Muriithi, J
May 31, 2023
Between
Republic
Prosecution
and
Joseph Kimathi
1st Accused
Lawrence Mason
2nd Accused
Don Mugambi Kimathi
3rd Accused
Ruling
1. Section 201 (2) of theCriminal Procedure Code applies the provisions of section 200 Criminal Procedure CodeMutatis Mutandi in the High Court trial.
2. By section 200 (3) an accused ‘may demand that any witnesses be resummoned and reheard.’ In exercise to discretion to allow recall of witnesses, the court must act judicially and the accused must show sufficient cause consistently with right to fair trial and trial within a reasonable time.
3. In this application, the accused’s counsel only justified the recall with regard to the minor (PW1) who it was urged “the court should take the voire dire examination and demeanor can only be noted by the present court” which finally tries the matter.
4. The court considers that there is a reasonable request for the recall of the minor witness PW1, and therefore directs that the trial shall proceed from the position that the matter had reached with the previous court, subject only to the recall of PW1 the minor witness for voire dire examination and subsequent examination and cross – examination, as necessary.
5. Directions as to further hearing shall be taken in consultation with counsel for the prosecution and the reference.
6. Mention on June 14, 2023 for directions as to hearing date.
DATED AND DELIVERED THIS 31ST DAY OF MAY, 2023EDWARD M. MURIITHIJUDGEAppearancesMr. Masila for DPPMr. Mutuma Joel for Accused.