[2022] KEHC 10795 (KLR)
The court held that the mere fact that directions had been given under section 200 of the Criminal Procedure Code for the trial to proceed from where it had reached does not preclude the recalling of a witness if the interests of justice so require. The court found no evidence that the witness had improperly sat in...
Source-derived case information.
- Citation
- [2022] KEHC 10795 (KLR)
- Parties
- Applicant: Republic; Defendant: Paul Mwangangi Malonzi; Defendant: Janet Nthenya Mwangangi; Defendant: Marrieta Kavindu Kamanu; Defendant: Nzilani Mbithi; Defendant: Gerald Mwendwa Muthoka; Defendant: Wilfred Munyao Kithoma
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 18 of 2017
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application to Recall Witness at Close of Prosecution Evidence
- Outcome
- Application to recall Pw1 allowed with limitations.
- Judges
- GMA Dulu
- Legal Topics
- Recall of Witness, Fair Trial Rights, Late Evidence Admission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Paul Mwangangi Malonzi
Defendant
Janet Nthenya Mwangangi
Defendant
Marrieta Kavindu Kamanu
Defendant
Nzilani Mbithi
Defendant
Gerald Mwendwa Muthoka
Defendant
Wilfred Munyao Kithoma
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application to Recall Witness at Close of Prosecution Evidence
Legal Issues
- 1 Whether the prosecution should be allowed to recall Pw1 to give further evidence after the close of prosecution case.
- 2 Whether recalling the witness would prejudice the defence or cause undue delay.
Ratio Decidendi
The court held that the mere fact that directions had been given under section 200 of the Criminal Procedure Code for the trial to proceed from where it had reached does not preclude the recalling of a witness if the interests of justice so require. The court found no evidence that the witness had improperly sat in court or that the defence had not been supplied with the relevant witness statement. Since the defence had been provided with the statement, the court allowed the prosecution's request to recall Pw1, but limited the scope of testimony strictly to the contents of the already supplied witness statement, thereby balancing the interests of justice and the rights of the accused to a...
Court Disposition
Application to recall Pw1 allowed with limitations.
Orders
- The prosecution is allowed to recall Pw1, but only to testify in line with the witness statement already supplied to the defence.
Full Case Text
Judgment text and source record
32 paragraphs
Republic v Malonzi & 5 others (Criminal Case 18 of 2017) [2022] KEHC 10795 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10795 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Case 18 of 2017
GMA Dulu, J
June 16, 2022
Between
Republic
Prosecution
and
Paul Mwangangi Malonzi
1st Accused
Janet Nthenya Mwangangi
2nd Accused
Marrieta Kavindu Kamanu
3rd Accused
Nzilani Mbithi
4th Accused
Gerald Mwendwa Muthoka
5th Accused
Wilfred Munyao Kithoma
6th Accused
Ruling
1. At the tail end of the prosecution evidence, the Assistant Director of Public Prosecutions Mr. Tanui asked that the court allows the State to recall Pw1, as he had recorded two statements and he was let to testify only on the evidence of identification of the deceased person. Mr. Tanui stated that recalling the witness will not be prejudicial to the defence as witness statements on his intended evidence were supplied to all the defence counsel.
2. All the defence counsel opposed the request stating that directions had been taken under section 200 of theCriminal Procedure Code for the trial to proceed from where it had reached. Secondly, the cross-examination conducted so far was premised on the evidence tendered and recalling this witness might mean recalling all other witnesses for cross-examination and thus cause undue delay in this 2017 case. Additionally, they contended that either that intended witness or his relatives sat in court after testifying, thus they could fabricate evidence from what had already transpired in court.
3. In my view, the fact that directions have been given under section 200 Criminal Procedure Code (Cap.75) that trial proceeds from where it has reached, does not mean that any witness cannot be recalled, if the justice of the case so requires.
4. I am also not aware that the witness Pw1 sat in court throughout the case, and none of the counsel has given specific dates when that witness sat in court.
5. Thirdly, I have perused the recorded evidence and note that Pw1 testified only on identifying the father (deceased) at Makindu Hospital for post mortem examination. Though the Assistant Director of Public Prosecution has not disclosed the nature of evidence to be covered he has said that the State has supplied defence counsel with the relevant witness statement. None of the defence counsel has denied this.
6. If no prior witness statement was provided to the defence, I would have declined this late request. As it is, however, as the witness statement was supplied, I will allow the request only to the extent of the witness testifying in line with the witness statement of this witness, already supplied to the defence.
7. I thus allow the request by the Director of Public Prosecutions to recall Pw1, but to testify only in line with the witness statement already supplied to the defence.It is so ordered.
DELIVERED, SIGNED & DATED THIS 16TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI..............................GEORGE DULUJUDGE