Republic v Mary Sammy & Kimwele Nyoka [2017] KEHC 390 (KLR)
- Citation
- [2017] KEHC 390 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- LN Mutende
- Case number
- Criminal Case 20 of 2015
- Language
- English
More details
- Court
- High Court
- Panel
- LN Mutende
- Case number
- Criminal Case 20 of 2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the discretion to recall a witness under Section 146(4) of the Evidence Act should be exercised in the interest of justice. Since the current defence counsel was appointed after the initial cross-examination and identified discrepancies between the witness's statement and testimony, it was fair to allow further cross-examination. The application was made before the defence case commenced, and the prosecution would not be prejudiced as it retained the right to re-examine the witness. The court concluded that recalling the witness would uphold the accused's right to a fair trial and ensure justice is served.
Court disposition
application allowed
Orders
- The prosecution witness Dr. Mutukua shall be recalled for further cross-examination by the defence counsel.
02
Material facts
Parties
Republic
Applicant Counsel: Mr. WanjalaMary Sammy
Defendant Counsel: Ms. MatiKimwele Nyoka
Defendant Counsel: Ms. Mati03
Procedural history
Posture
Criminal Case / Ruling on Oral Application to Recall Prosecution Witness for Further Cross Examination
04
Questions and positions
Legal issues
- 01
Whether the court should grant leave to recall a prosecution witness for further cross-examination by newly appointed defence counsel.
- 02
Whether recalling the witness would prejudice the prosecution or serve the interests of justice.
Party arguments
- Applicant
- Ms. Mati, counsel for the accused, argued that Dr. Mutukua's statement differed from his testimony in court and that clarification was necessary. She relied on Section 146(4) of the Evidence Act, emphasizing the accused's right to a fair trial and the need for the current counsel to address issues that arose before her appointment.
- Respondent
- Mr. Wanjala, State Counsel, opposed the application, contending that the witness had already been examined by previous defence counsel and that any anomalies could be addressed after the close of the defence. He argued that there was no need to recall the witness at this stage.
05
Court’s reasoning
Legal principles
- 01
Section 146(4) of the Evidence Act (Cap. 80)
The court has discretion to permit a witness to be recalled for further examination-in-chief or cross-examination in all cases.
- 02
Article 50, Constitution of Kenya, 2010
An accused person is entitled to a fair trial, including the opportunity to clarify issues through cross-examination.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the discretion to recall a witness under Section 146(4) of the Evidence Act should be exercised in the interest of justice. Since the current defence counsel was appointed after the initial cross-examination and identified discrepancies between the witness's statement and testimony, it was fair to allow further cross-examination. The application was made before the defence case commenced, and the prosecution would not be prejudiced as it retained the right to re-examine the witness. The court concluded that recalling the witness would uphold the accused's right to a fair trial and ensure justice is served.
Obiter and limits
- The provision of law cited gives the court discretion to permit recalling of a witness in all cases.
- An accused person is entitled to a fair trial as enshrined in the Constitution of Kenya, 2010.
Court disposition
application allowed
- The prosecution witness Dr. Mutukua shall be recalled for further cross-examination by the defence counsel.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 20 OF 2015
REPUBLIC............................................PROSECUTOR
VERSUS
MARY SAMMY......................................1ST ACCUSED
KIMWELE NYOKA.............................2ND ACCUSED
R U L I N G
1. The Accused person is charged with the offence of Murder contrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that on the 25th day of April, 2011at about 11. 00 a.m.at Usenga Village, Kanzau Sub-location, Kisasi Locationof Kitui Districtwithin Kitui Countyjointly murdered Kinyamasyo Mweti(Deceased).
2. In an oral application Ms. Mati,learned Counsel for the Accused sought this Court’s leave to recall Dr. Mutukua prosecution witness who testified for further cross examination prior to her appointment by the State to represent the Accused. She relied upon Section 146(4)of the Evidence Act.She stated that the statement the Doctor recorded differed with what he stated in Court an issue that needed clarification.
3. The application was opposed by Mr. Wanjala,learned State Counsel on the grounds that the Doctor testified and was examined by Counsel who was previously on record. He argued that issues raised by Counsel on the anomalies on the statements could be raised after the close of the defence.
4. The provision of law cited provides thus:
“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”
5. The provision of the law falls under a section that gives direction on the order of examination of witnesses. The stated provision of the law gives the Court the discretion to permit re-calling of the witness in all cases. An Accused person is entitled to a fair trial as enshrined in the Constitution of Kenya, 2010 (vide Article 50).
6. This is a matter where counsel was retained by the State to represent the Accused after a ruling had been delivered and the Accused informed of the right to address the Court pursuant to the provisions of Section 306(2)of the Criminal Procedure Code.Although the Accused was represented by a different counsel it may be fair for the current Counsel having abraised herself with what transpired in her absence to seek clarification of issues that emerged.
7. The application has been made before the Accused is called upon to tender her evidence in defense. The prosecution will not be prejudiced if the order sought is granted because it will have the opportunity to re-examine the witness.
8. In the premises I find that it will be in the interest of justice to have the witness re-called for further cross examination. Therefore, the application is allowed as prayed.
9. It is so ordered.
Dated, Signed and Delivered at Kitui this 6th day of June, 2017.
L. N. MUTENDE
JUDGE
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