https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8715

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CRIMINAL REVISION NO. E009 OF 2026** **REPUBLIC…………………..…………………………… APPLICANT** **VERSUS** **EDWARD RAMADHAN MUKANGA………1ST ACCUSED/RESPONDENT** **KEVIN ABDULMALIK OBARE………2ND ACCUSED/RESPONDENT** **HASTINGS UMAR ABEBO……3RD ACCUSED/RESPONDENT** **EDWIN ABDULRASHID OMONDI.......4TH ACCUSED/RESPONDENT** **RULING** 1. The prosecution, through a letter dated 8th June 2026 has sought for revision of the lower court orders in Siaya MCCRE167 of 2024 made on 4/6/2026. The gist of the complaint as gleaned from the letter is inter alia; that the State humbly invokes this Honorable Court's supervisory jurisdiction under Article 165(6) and (7) of the Constitution of Kenya, to call up the record of the lower court proceedings before Hon. Lily Nafula, and review, set aside and/or vacate the ruling issued on 4th June 2026 (attached for ease of reference), whereby the trial court closed the prosecution's case without affording the prosecution an opportunity to call its two remaining witnesses, thereby denying the State its constitutional right to a fair hearing under Article 50 of the Constitution and occasioning a miscarriage of justice; that the nature of the matter is that the accused persons stand charged with various counts of terrorism, a matter of significant national interest; that since charges were preferred on 18th March 2024, the prosecution has called twenty-four (24) witnesses and produced over thirty (30) exhibits; that the remaining two witnesses are critical as they are to produce the outstanding exhibit; that by its nature, this matter proceeds physically at Kodiaga Prison due to the volume of exhibits and security concerns that arose in the course of proceedings; that the circumstances of 4th June 2026, whilst the prosecution had been granted a last adjournment with directions to proceed virtually on 4th June 2026, virtual proceedings would have materially compromised the prosecution's ability to present its evidence effectively; that the Clinical Officer scheduled to testify was bereaved; that the prosecution accordingly wrote to the trial court on 3rd June 2026 requesting an adjournment and physical hearing at Kodiaga Prison, copying counsel for the accused; that notwithstanding this timely communication, the trial court proceeded virtually and closed the prosecution's case, thereby shutting out the State from presenting its remaining witnesses and exhibits; that this application is not made to delay justice but to ensure that this matter of national importance is determined fully, fairly, and on its merits in the interests of justice; that the prosecution prays for the following orders: 1. Stay the lower court proceedings pending the hearing and determination of this application. 2. Call up and examine the record of proceedings before Hon. Lily Nafula. iii. Set aside the order of 4th June 2026 closing the prosecution's case. Iv. Restore the matter to the trial court with directions for the prosecution to call its remaining two witnesses. V. Direct that proceedings (especially for the Investigating Officer) be conducted physically at Kodiaga Prison. Vi. Grant any further relief this Honorable Court deems just and fit. 2. Upon receipt of the revision request, this court directed the parties to present oral submissions thereon. 3. Mr. Soita submitted inter alia; that they have presented a request to have the order of the trial court reversed to enable then present two witnesses before they close their case; that the matter could not proceed as the maker of P3 form was bereaved and that the investigating officer was present but the nature of the matter could not be dealt with virtually; that the prosecutor had to ask for adjournment; that matter on the side of the prosecution was being coordinated from Nairobi; that this matter has been going on at the Kodiaga Prison and that there were other matters of similar nature; that the hearing has been at the prison due to security concerns; that the previous adjournments were on merit and that they requested to have the case be adjourned so as to enable them to present the two witnesses; that the people of Kenya have an interest in the matter and that the revision request is merited. 4. Mr. Odhiambo, learned counsel for the defence submitted inter alia; that the accused have been in custody since 2023; that the prosecution has occasioned more than ten adjournment and five last adjournments; that the prosecution has been raising the argument that this is a terrorism case and that the accused have had to undergo a lot of challenges; that the trial court had warned the prosecution of the frequent delay; that on the material date the parties were at Kodiaga Prison; that on 4/6/2026 all parties were in open Court in Siaya and that the investigating officer was present and ready to testify but was not allowed to testify by the prosecution; that there was no evidence that summons were served upon the official at Siaya County Referral Hospital; that the defence even proposed that the parties can have the P3 form produced by consent but the prosecution refused; that the request by prosecution that the matter should proceed only in Kodiaga is full of mischief; that two investigating officers had already testified and that the remaining one was not to produce any exhibits but only to present his testimony; that when the mater was reserved for ruling on case to answer, they served the prosecution with their submissions only for them to now make the revision; that this is wrong as they want to put their house in order yet the accused have been in custody for far too long; that the prosecution agreed to have the matter reserved for ruling only to turn around and come up with the revision request; that an adjournment is not a right but must be earned; that the prosecution had the investigating officer who could testify but refused to accept and also refused to have the P3 form produced by consent; that he urged this Court to dismiss the revision since the matter is now pending ruling before the trial Court on 26/6/2026. 5. I have considered the request for revision by the prosecution as well as the oral submissions by learned counsels. Revisionary power is donated to the High Court under Article 165 (6) and (7) of the Constitution which provides as follows: (6) The High Court has supervisory jurisdiction over the subordinate courts and over every person, body or authority exercising a judicial or quasi -judicial function but not a superior court. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person or authority referred to in clause (6) and may make orders or give any direction it considers appropriate to ensure the fair administration of justice. 6. Revisionary powers of the High Court are also granted under sections 362 and 364 of the Criminal Procedure Code as follows: 362- Empowers the court to call for and examine the criminal record of any criminal proceedings before a subordinate court to satisfy itself regarding the correctness and legality of any finding, sentence or order as well as the regularity of those proceedings. 364. The High Court may alter or reverse an order, sentence or finding but not to convert an acquittal into a conviction. It can also direct a subordinate court to conduct a fresh trial or inquiry or correct sentencing anomalies. 7. The crux of the Applicant’s quest for revision stems from the trial court’s proceedings of the 4/6/2026. On that date, the prosecution sought for an adjournment as the clinical officer who was to testify and produce the P3 form was said to be bereaved and further that even though the investigating officer was present in court, it was the wish of the prosecution that the matter should be heard at Kodiaga prison physically in the presence of the accused persons and further for the production of exhibits. Learned counsel for the defence vehemently opposed the adjournment and contended that the prosecution had sought several adjournments had been sought by the prosecution yet the accused are still in custody. It was further contended that the defence was willing to have the P3 form produced by consent and that the investigating officer could just proceed to tender his evidence as other two investigators had already produced the exhibits. Learned counsel further submitted that the exhibits had been produced by PW15 and PW23 which are now court property though being kept by the police for security purposes. It was the finding of the learned trial magistrate that the prosecution’s request for adjournment lacked merit and that the rights of the accused persons had been infringed. The trial court ordered the prosecution to proceed or close its case. This thus precipitated the revision herein. 8. Upon perusal of the record of the trial court and the ruling of the learned trial magistrate, it is clear that indeed the matter had been proceeding at Kodiaga prison and at times at the court room here in Siaya. On the material date, all the parties were present in court save only the accused persons who appeared virtually and who could properly participate through their learned counsel who would cross- examine the witnesses. The defence presented a germane suggestion namely that the P3 form could be produced by consent while the investigating officer who was present could tender his evidence as he had no exhibits to produce since PW15 and PW23 had produced them. Indeed, it is in the interest of the parties to have the matter prosecuted faster. Looking at the actions by the prosecution to have the matter rescheduled to another date, iam satisfied that no plausible reason had been presented to warrant the adjournment. The record clearly indicate that all the exhibits had been produced by the relevant witnesses leaving only the clinical officer who would produce the P3 form. As the defence agreed to have the p3 form produced by consent and the remaining investigating offer being allowed to testify, the matter could have been wrapped up on that day. However, the vociferous application by the prosecution to have the matter taken to Kodiaga for hearing when it could easily be wrapped up in court seems to betray their intentions. It is clear that the prosecution was hell-bent on having the matter adjourned to another date and which would further delay the matter further. No prejudice would have been suffered by the prosecution if it had agreed to have the P3 form produced by consent and the remaining investigating officer allowed to testify. With the facts as presented, it is clear that the prosecution’s request for adjournment was not merited in the circumstances. It had other ulterior purposes and hence the finding by the trial court was proper and ought to be sustained. I find no impropriety or illegality in the proceedings of 4/6/2026 and the eventual ruling to warrant this court to interfere and or revise the trial court’s order. 9. In view of the foregoing observations, it is my finding that the Applicant’s request for revision dated 8/6/2026 lacks merit. The same is dismissed. The parties should proceed with the directions of the trial court regarding the filing and exchanging of submissions on case to answer and to await the court’s ruling. **Dated and delivered at Siaya this 23rd day of June 2026.** **D. KEMEI** **JUDGE** **In the presence of:** 1. **Mr Soita......................................for Applicant.** 2. **Mr Odhiambo................................for Respondent.** 3. **M/s Maurine....................................Court Assistant.**