https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9045

Republic v Kongo (Criminal Case E026 of 2021) [2026] KEHC 9045 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9045 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Case E026 of 2021 JR Karanja, J June 18, 2026 Between Republic Prosecutor and George Omamo Kongo Accused Ruling 1.This record shows that the plea in this case was taken before Kiarie J, on 7th June 2021 and the hearing of the case effectively commenced on 4th October, 2021 whereupon Four(4) prosecution witnesses testified i.e Joel Aguko Oloo (PW1) David Otieno Ondigo (PW2, Everline Achieng Oginga (PW3) and PC Geoffrey Ochieng (PW4).Learned counsel, Mr. Ochieng, represented the accused all along, but on 8th June 2022, he informed the court that the accused had decided to retain learned counsel, Mr. Ongoso to represent him. 2.At the next hearing date on 17th November, 2022, two additional prosecution witnesses testified i.e Salvin Adhiambo Odhiambo (PW5) and Paul Odira Ongwenya (PW6). Mr. Ongoso had the conduct of the defence case at the time.The Prosecution applied for adjournment after the two witnesses testified. The matter was adjourned on several occasions for further hearing such that as at the 14th March 2025 when it came up for further hearing, Kiarie, J. was already on the move to another judicial station. He therefore placed the matter for mention for directions on 22nd April, 2025 before the incoming judge, Olga Sewe, J. It was then that the defence counsel (Mr. Ongoso) indicated that the defence wishes for the matter to be heard afresh (de-novo) since it was partly heard. The prosecution, through the learned prosecution counsel M/s Oduor, asked for time to ascertain the availability of the witnesses who had previously testified. This prompted the matter to be fixed for further directions on 21st May 2025. 3.On that 21st May 2025, Mr. Ongoso informed the court that after a discussion with the prosecution the defence decided to withdraw their earlier position for a fresh hearing of the case and instead they wished that only (PW1) be recalled for cross examination. The court then brought to the attention of the accused the provisions of Section 200(2) of the Criminal Procedure Code and he confirmed the defence position as stated by his counsel. The matter was then fixed for further hearing on 18th June 2025 when Joel Aguko Oloo (PW1) Was recalled and was cross examined. Thereafter, the prosecution called an additional witness Jenipher Kerubo (PW7) before the matter was adjourned to 18th September, 2025 for further hearing, but was instead mentioned before Odera J. and fixed for further hearing on 21st January 2026, then to 22nd January 2026 and eventually to the 4th March 2026, when prosecution closed its case. 4.On 16th April, 2026, the court rendered its ruling and placed the accused on his defence to be heard on 6th May 2026. As at that time, the court (Olga Sewe J.) was already on the move to another judicial station. Therefore, the matter was placed before this incoming court for defence hearing when the prosecution proposed that the matter proceeds from where it stopped. The court complied with the provisions of Section 200 CPC, but the accused applied for the matter to start afresh. The defence counsel (Mr. Ongoso) confirmed as much and stated that the accused felt that he had inadequately been represented by his previous advocate hence wished that the matter starts afresh altogether.The prosecution through the learned Prosecution Counsel M/s Mokua, raised an objection indicating that the prosecution was uncertain as to whether it would be able to secure the attendance of all its witnesses who had previously testified. In that regard, the prosecution sought a mention date to confirm as much or otherwise. The matter was then slated for mention on 11th June 2026. 5.On that 11th June 2026, the prosecution indicated that it would find difficulties in tracing about five(5) witnesses who had previously testified and therefore wished for the matter to proceed from where it lastly stopped. The defence objected citing an ongoing similar case in which the same witnesses are involved thereby implying that they would be available if this matter was to start afresh.Basically, the issue emerging for determination is whether or not this matter should continue from where it stopped before the out going court or should start afresh (de-novo) before this incoming court in terms of the provisions of Section 200 of the Criminal Procedure Code. 6.In that regard, Section 200 provides as follows:“(1)Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may:-a.Deliver a judgment that has been written and signed but not delivered by his predecessor, orb.Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.(2)::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;;:::(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused of that right”. 7.Section 201(2) of the Criminal Procedure Code provides that the provisions of Section 200 of the Act shall apply “Mutatis Mutandis” to trials held in the High Court.In essence, Section 200CPC provides for adoption of evidence already recorded by another judge without having to restart the case afresh or de-novo.A court may also elect to re-summon witnesses and recommence the trial entirely. However, under sub-section (3) of Section 200CPC, the accused person may demand that any witness be re-summoned and reheard. It is mandatory under this provision that a succeeding magistrate or judge inform the accused of that right. This basically is meant to protect the right of the accused person, hence his constitutional right to a fair trial under Article 50(2) of the Constitution. 8.There is no obligation placed on a succeeding magistrate or judge to start a case a fresh or “de-novo”. The only obligation placed on the succeeding court is to bring to the attention of the accused the provisions of Section 200 and in particular Section 200(3) of the Criminal Procedure Code and consider any request made by the accused for recalling of witnesses for a fresh start of the case or for their cross examination.The right of an accused person to demand a fresh start of a case must be balanced against that of the prosecution to carry out its constitutional mandate without unnecessary delay and to guard against abuse of the Criminal Justice process by an accused person. 9.Regard must be given to the availability or non-availability of the witnesses who had previously testified or the inconveniences or expenses that may be incurred to secure their attendance in court for a re-trial.The Court of Appeal in the case of Ndegwa Vs Republic[1985]KLR,534, stated that:-“Section 200 is a provision of the law which is to be used very sparingly, indeed, and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the end of justice, if a succeeding magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial” 10.This matter has fully been completed on the part of the prosecution case and this was more than two(2) months ago on 4th March 2026. It is at this stage of defence hearing that the accused demands that the matter be heard afresh and although it is his right to do so even at this stage this court is of the view that the interest of justice will be served, if the matter were to proceed from where it stopped with the previous judge.A fair trial under Article 50 of the Constitution connotes that a trial should commence and be concluded without unreasonable delay. In the circumstances of this case starting the trial “de-novo” would invariably constitute a delay in finalizing it. 11.For all the reasons foregoing the objection by the defence to the prosecution’s application that this mater proceeds from where it stopped it lacking on merit and is hereby overruled and dismissed. Matter to continue from where it stopped DELIVERED, DATED THIS 18TH DAY OF JUNE 2026.HON. J.R. KARANJAHJUDGE