[2022] KEHC 15005 (KLR)

Republic v Mbogo (Criminal Case 3 of 2015) [2022] KEHC 15005 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15005 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 3 of 2015

LM Njuguna, J

November 9, 2022

Between

Republic

Prosecution

and

Kevin Mugambi Mbogo

Accused

Ruling

1. The accused herein was 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 December 12, 2014 at Gathiria village, Kibugu Location within Embu County murdered John Murimi Nthiga and upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered for the accused person.

2. The case proceeded for trial and wherein the prosecution called five (5) witnesses in support of its case, after which, the prosecution prior to closing its case noted that it was necessary to call a witness by the name of CI Karuri who had taken an alleged confession of the accused person herein and so the prosecution sought for an adjournment to call the said witness.

3. The learned counsel for the defence, Mr Njagi objected to the application submitting that the same was an afterthought and prejudicial to the accused person. It was his submission that there was a pretrial that was conducted and the prosecution supplied the defence with all the statements that the prosecution had wished to rely on. That the defence was supplied with the typed and handwritten statements and the confessionary statement was not there.

4. It was his case that the application herein is an afterthought and ambush to the defence as the same has only been raised by the investigating officer. That in the trial bundle that he was served with, the alleged witness that the prosecution would wish to call had initially been listed but then later dropped. It was submitted that the nature of the offence facing the accused herein is serious in nature and as a result, it was too late for the prosecution to be allowed to call the said witness as the same would be prejudicial to the accused herein. He urged this court to disallow the said application.

5. The prosecution in a rejoinder submitted that the application was made in good faith in that the same was as a result of an error from their record in that the same indicated that the investigating officer was the last witness and further, it was the first time that the same error was coming to her attention given that the matter was previously handled by a different prosecutor. She contended that the evidence of the witness was very crucial to the case herein and as such, prayed that the application be allowed.

6. This court has considered the application by the prosecution and the reply by the defence and finds that it has been called upon to invoke its discretion as to whether or not to grant the orders sought by the prosecution.

7. Of importance to note is the fact that the keystone principle in determining whether the prosecution should be allowed to call this witness is whether the accused will suffer prejudice.

8. The defence has submitted that in calling the said prosecution witness, the same will be tantamount to injuring its case given that the accused faces a serious charge.

9. The right to fair hearing is provided for under article 50(1) of theConstitution and the attendant rights of an accused person are set out in article 50(2) of theConstitution. Article 50 (1) of theConstitution provides:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

10. Considering the rights of the accused, the victim, and society as a whole in a criminal trial is not only fair, pragmatic but also constitutionally viable and the same has been acknowledged in various jurisdictions. In Attorney-General’s Reference(No 3 of 1999) [2001] 2 AC 91 [118], the House of Lords dealing with a question of law involving the proper construction of section 64(3B) of the Police and Criminal Evidence Act 1984. One of the issues that came for consideration was fairness of a trial. Lord Steyn observed:“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.” [Also see House of Lords decision in R v H [2004] 2 AC].

11. From the above decision, it is trite that a judge/court must protect the rights of all parties involved in a criminal proceeding. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest and in fact, the true interrelationship of the three is complementary.

12. The right of an accused person to be informed in advance of the evidence to be adduced by the prosecution during the trial is one among the cluster of rights guaranteed under article 50 (2) of theConstitution intended to ensure that accused persons are accorded a fair trial. These rights should be read together as a whole not in isolation.

13. However, it is important to note that the right of an accused person to a fair trial must be balanced with the victim of the offence’s right to access justice and the public interest generally. [See the Court of Appeal’s decision in Kamau Mbugua v Republic [2010] eKLR].

14. Ngenye J (as she then was) held the view in the case of Robert Muli Matolo v Republic [2015] eKLR as follows:““Where a witness is intended to adduce evidence that analyses a crucial document that shapes the prosecution’s case, no excuse can be tenable that the witness ought not to record his statement. This may however exclude statements of obvious witnesses who produce documents such as Medical Examination Reports (P3 Forms), Treatment Notes and Post Mortem Reports……….That is evidence that cannot be wished away or assumed. Simply said it was important that he recorded his statement. In the absence of his statement, the expert report (data analysis) ought to have been furnished to the defence at the commencement of the trial, or, as ordered by the court…..”

15. Similarly, in the case of Kulukana Otim v R [1963] EA 257, the Court of Appeal, in considering section 148 of the Ugandan Criminal Procedure Code which is, in pari materia with our section 150, stated that:"A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.It will be seen that the first part of the section confers a discretion, but under the second part, if it appears to a judge that the evidence of a person is essential to the just decision of a case, there is a mandatory duty on the judge (if the witness has not been called) to call him himself…. and further, the right for whichever party to cross examine any such person.” [Emphasis mine].

16. The above case seems to suggest that there may be situations which would persuade a trial Judge to allow or recall a witness but such a situation would be valid only if it is based on sound reasons.

17. In the case herein, the prosecutor in making the application submitted that it was an error from their record in that the same indicated that the investigating officer was the last witness and further, it was the first time that the same error was coming to her attention given that the matter was previously handled by a different prosecutor altogether. She contended that the evidence of the witness was very crucial to the case herein.

18. Having in mind the reason why the prosecutor has urged this court to allow the prayer sought, can the same be viewed to lead this court to reach a just determination of the case before it?

19. It is my view that the prosecution’s application to call the witness herein is not meant to start the case denovo and having in mind that the prosecution is yet to close its case, the only commendable order to me in ensuring that justice is done is that of allowing the prosecution to call the said witness.

20. Further, I hold the view that no prejudice shall be caused to the accused herein as the defence will also be granted an opportunity to cross examine on the same should need be.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L NJUGUNAJUDGE……………………………………….…..for the Accused……………………………………………….for the State