[2016] KEHC 6884 (KLR)
The court held that while the prosecution has a duty to present all relevant evidence, this must not infringe upon the accused's right to a fair trial. The potential prejudice to the accused from the late introduction of a new witness can be mitigated by requiring the prosecution to furnish the witness statement to...
Source-derived case information.
- Citation
- [2016] KEHC 6884 (KLR)
- Parties
- Applicant: Republic; Defendant: Leonard Owino Barasa
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2015
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application to Call Additional Witness After Commencement of Trial
- Outcome
- Application to call additional witness allowed with conditions.
- Legal Topics
- Murder Trial, Adducing Additional Evidence, Right to Fair Trial, Witness Recall
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Leonard Owino Barasa
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application to Call Additional Witness After Commencement of Trial
Legal Issues
- 1 Whether the prosecution should be allowed to call an additional witness after five witnesses have already testified.
- 2 Whether allowing the additional witness would prejudice the accused's right to a fair trial.
- 3 What safeguards are necessary to ensure the accused is not prejudiced by the late introduction of a new witness.
Ratio Decidendi
The court held that while the prosecution has a duty to present all relevant evidence, this must not infringe upon the accused's right to a fair trial. The potential prejudice to the accused from the late introduction of a new witness can be mitigated by requiring the prosecution to furnish the witness statement to the defence at least 30 days before the next hearing and by allowing the defence to recall any of the five prosecution witnesses who have already testified for further cross-examination. These safeguards ensure that the accused is not ambushed and has adequate opportunity to prepare, thus balancing the interests of justice with the accused's constitutional rights.
Court Disposition
Application to call additional witness allowed with conditions.
Orders
- The prosecution shall furnish the statement of the additional witness to the accused and his counsel at least 30 days before the next hearing.
- The defence is entitled to recall any of the five prosecution witnesses who have already testified for further cross-examination.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
H.C. CRIMINAL CASE NO. 5 OF 2015
REPUBLIC-------------------------------------------- PROSECUTOR
VERSUS
LEONARD OWINO BARASA---------------------------ACCUSED
RULING
1. Leonard Owino Barasa (The Accused) is charged with the offence of Murder contrary to Section 203 as read with Section 204 of The Penal Code. The Particulars of the offence being that on the night of 25th and 26th January 2015 at Sidende West Village, Sidende sub location, within Busia County Murdered Anthony Namukonga Kafwa.
2. Hearing has commenced and after five Prosecution witnesses had testified, The State Counsel requested that the State be allowed to take a statement from one Osundwa as an additional witness. That application was resisted by Mr. Okutta who posed the following questions:-
a) Who is Osundwa?
b) Why was he not interviewed earlier by the police?
c) Will this not be prejudicial to the Defence as the proceedings are fairly advanced?
3. The obligation of a Court of Law in Criminal Proceedings is to see that justice is done to the Accused, the State and the Victim (or like here where the victim died, his family). The State is obliged to place before Court all evidence it can marshal so that this objective can be achieved. But in doing so, the State must proceed in a manner that does not abridge the Accused Person’s Right to a Fair Trial.
4. A substantial concern by the Accused is that as the proceedings have advanced so far, the introduction of a new witness may prejudice his Defence. This may not be an insignificant concern but there are ways to safeguard the Accused person. So as to enable him prepare adequately himself for this witness, the statement of the witness must be given to the Accused person and his Counsel way in advance of the next hearing.
5. Second, as often, an effective of way defending a criminal case is to take a holistic approach of the entire Prosecution case, the Defence will be entitled to recall any of the 5 witnesses who have so far testified for further cross-examination.
6. The identity of Osundwa will be revealed in his statement and the Defence will have opportunity to probe further through questions in cross-examination, why it took long to have the witness interviewed. The Court will then make its own evaluation of the evidence.
7. For the reasons given, I am inclined to allow the Application but with an order requiring that the Statement of the said witness be furnished to the Accused and his Counsel at least 30 days before further hearing of this matter. Secondly the Defence shall be entitled to recall any of the witnesses who have so far testified.
Dated, signed and delivered at Busia this 22nd day of February 2016.
F. TUIYOTT
J U D G E
In the presence of :-
Orwasa -C/Assistant
Owiti- for State
Okuta -for Accused.