[2022] KEHC 16515 (KLR)

Republic v Mutua & 2 others (Criminal Case 8 of 2013) [2022] KEHC 16515 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16515 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 8 of 2013

MW Muigai, J

November 8, 2022

Between

Republic

State

and

Johnson Nzau Mutua

1st Accused

John Kiamba Mutua

2nd Accused

Benson Mwanzia Nyele

3rd Accused

Ruling

1. The Accused persons herein Johnson Nzau Mutua, John Kiamba Mutua and Benson Mwanzia Nyele had been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that the on the night of 11th and November 12, 2012 at Maiyuni village, Mumbuni location in Machakos County jointly murdered Austin Kyalo Kiamba.

2. The Mental Assessment Report in respect of all the three Accused persons was conducted and plea taken on April 11, 2013 whereby they all pleaded Not Guilty.

3. All the parties were legally represented and the hearing that commenced on November 26, 2014.

4. The Prosecution called a total of 12 witness in support of their case.

5. The hearing was conducted by the following Trial Judges;a)Hon LJ B Thuranira Jaden took evidence of Pw1,Pw2,Pw3,Pw4 & Pw5b)Hon J DK Kemei Pw6,Pw7,Pw8,Pw9,Pw10,Pw11 & Pw12

6. This Court took over the matter on October 21, 2021 and granted orders for proceedings to be typed and copies availed to all parties/Counsel for prosecution and Defense before directions under Section 200 -201 CPC were/are taken.

7. On November 17, 2021, this Court confirmed to the Accused Persons/Counsel for the Defense & Prosecution that typed proceedings were ready and available to the parties/Counsel.

8. On December 15, 2021"Before Hon M W Muigai – JJohnson Nzau Mutua- 1st accused – present in CourtJohn Kiamba mutua – 2nd accused – present in CourtBenson Mwanzia Nyele 3rd accused – present in CourtMr Makundi for 1st and 2nd accused persons – present in CourtMr Mbuthia for the 3rd accused – present in CourtMr Mwongera DPP office – present in CourtCourt: All parties /Counsel shall obtain copies of typed proceedings. The Accused person Counsel & DPP Office.Mr Makundi: We are to take directions on Section 200 – 201 CPCCourt: The prosecution closed and now it is defense hearing as per the Ruling of February 16, 2021. Mr Makundi for the 1st and 2nd Accused: We wish to proceed from where we stopped and before the defense hearing we wish to have Pw8 Lawrence Wahome Muchoki to testify afresh.DPP Office: We shall require time to find out if I can locate C I Lawrence Wahome as I am informed he retired from the Police Force.Mr Mbuthia: Our position is similar to that of the 1st and 2nd accused persons. We shall be seeking to recall PW.8. Court: The matter is slated for February 21, 2022 when Pw8 shall be recalled according to the rights under Section 200 – 201 CPC.February 21, 2022Before Hon M W Muigai – JMr Makundi for 1st and 2nd accused persons – present in CourtMr Mbuthia for the 3rd accused – present in CourtMr Mwongera DPP office – present in CourtJohnson Nzau Mutua- 1st accused – present in CourtJohn Kiamba Mutua – 2nd accused – present in CourtBenson Mwanzia Nyele 3rd accused – present in CourtMr Mwongera: We took directions and the Defence requested that PW8 Chief Inspector Wahome to be recalled for the cross-examination. The witness Pw8 chief Inspector Wahome is in retirement and resides in Naivasha and to avail him will be difficult on our side. Considering transportation and a place to sleep. We do not have a vote for the witness to come stay overnight and pay for the transport. We pray that we proceed with the matter.Mr Makundi: We are keen on recalling Pw8 Chief Inspector Wahome and order has been issued. It is not that the witness is unavailable but it is a matter of logistics and the Judiciary deals with paying off witness expenses. Naivasha is not too far from Machakos. There is need to have the witness to come and testify in the interest of justice. We can help to foot the bills to have the witness come to Court.Mr Mbuthia: I align myself with the submissions of my senior. We are very keen to have the said witness Pw8 to come to Court and the prosecution has indicated the whereabouts of Pw8 and the prosecution should ensure Pw8 attends Court and attendance is crucial. This is a 2013 matter and the Accuseds have been in Court since then. It is only just that Pw8 is availed and we proceed and conclude this matter.Mr Mwongera: We pray we get time to avail Pw8. Court: Section 200 – 201 CPC allows for recall of witnesses by the Accused person if available. The DPP prosecution has informed the Court Pw8 is available but retired and resides in Naivasha. The issue is payment of subsistence and travel expenses. The DPP prosecution shall liaise with the Deputy Registrar Machakos High Court for travel and subsistence of Pw8 to enable him come to Court and testify on March 21, 2022. 30 days to facilitate attendance of Pw8. The hearing to proceed from 11 a.m.March 21, 2022Before Hon MW Muigai – JC/A: GeoffreyJohnson Nzau Mutua- 1st accused – present in CourtJohn Kiamba mutua – 2nd accused – present in CourtBenson Mwanzia Nyele 3rd accused – present in CourtMr Mwongera: The matter is for hearing at 11 a.m.Court: Hearing to proceed at 11 a.m.Later: Mr Makundi for 1st and 2nd accused persons - presentMr Mbuthia for the 3rd accused persons – presentMr Mwongera DPP: We endeavor to speak to OCS Machakos in order to avail Pw8 and we are experiencing the same issue with regard to the further cross – examination we are not able to avail Pw8 and the issue of costs is still prevailing Pw8 testified and was cross – examined by the same counsel. We pray that the matter to proceed to defense hearing and we can finalize the matter it is a 2013 matter. Pw8 has since retired.Mr Makundi: We are ready to proceed and to meet Pw8 today. The DPP has not complied with the Court Order of February 21, 2022. DPP assured us of attendance of Pw8 and have whereabouts are known. The only issue was to have the witness in Court. Section 200 – 201 CPC is not idle and it is the justice of the matter for Pw8 to come to testify and the issue of retirement does not absolve him from civil duty. The DPP should have asked for witness summons or warrant of Arrest to issue. The last direction we took, the witness should be availed.Mr Mbuthia: We were also ready and keen to have Pw8 here today. DPP/Prosecutor has not given compelling reasons why Pw8 is not in Court and it is not a matter of contacting the OCS we are praying that Court is firm that calling of Pw8 is complied. Witness summons have not been filed and served.Mr Mwongera DPP/prosecutor: It is very difficult or on our part to get a witness officers who are off our system. They are retired and it is difficult for them to come back. I endeavor to serve OCS Machakos Police station to avail Pw8 as the matter originated from Machakos police station. I am requesting for witness summons to issue to Pw8 CI Lawrence Wahome Muchoki.Court: The parties/counsel to agree on the travelling expenses of the witness of Pw8; with Deputy Registrar Machakos High Court, DPP/Pros and Defense counsel before witnesses summons are issued.Later: At 2. 16 P.M.Directions:Court:1. The parties/counsel have agreed that Pw8 shall be facilitated by Defense counsel through remittance of Kshs 10,000/- to DPP/Pros for Pw8 Travelling and Subsistence Expenses.2. Witness summons to issue to Pw8 CI Lawrence Wahome Muchoki recalled for re-examination and cross-examination under Section 200 – 201 CPC.3. Further hearing on June 14, 2022. June 14, 2022Before Hon M W Muigai – JC/A: GeoffreyDPP/Prosecutor – Mr Mwongera – present in courtAccused persons – presentJohnson Nzau Mutua- 1st accused – presentJohn Kiamba mutua – 2nd accused – presentBenson Mwanzia Nyele 3rd accused – presentDPP/prosecutor Mr Mwongera present in CourtMr Wahome is in Court todayMr Mbuthia: We wanted Pw8 to be recalled as my client wants the confession to be retracted as the confession was obtained through retraction. 3rd accused person was represented by another advocate as at the beginning of the matter- the 3rd accused was represented by Ms Sambiri and she is now deceased and I did not have the opportunity to peruse the Court file it only came to our attention when we were preparing the defence. We want the confession to be examined by the Court and its veracity examined.Mr Makundi: I wish to say the right is conferred to the accused person under Section 200 CPC and the Court directed the said Pw8 and it is not on re-examination only but on evidence in chief. It is in order to give him the examination in chief. I rely on Republic –vs- Mohammed eKLR and Young Mbuvi – vs- Republic 2020 eKLR Section 146 (4) Evidence Act.Mr Makundi: On the Ruling delivered by Hon DK Kemei on February 16, 2021 the Court is to consider the Ruling and all evidence on record at the close of the defense case.Court: What happens to the evidence on record of Pw8. This is a Court of record do we expunge or do we consider alongside the evidence to be adduced?Mr Mwongera: The defense is trying to challenge the confession and that ought to be done before the confession is produced that is when a trial within a trial is conducted not now. The evidence is on record. Mr. Mbuthia and Mr. Makundi were present during the hearing and they are calling for Pw8 to testify again under section 146 Evidence Act.Court: The Court will allow parties/Counsel to discuss/agree on the way forward.Later:DPP/prosecutor Mr. Mwongera: We have agreed to research on the matter and file submissions on the matter. 14 days each for prosecution and defense.Court: Mention on July 14, 2022 at 2 p.m.July 14, 2022Before Hon MW Muigai – JC/A: GeoffreyMs Nzilani holding brief for Mr Makundi for 1st and 2nd accused – present in CourtDPP Mr Mwongera – present in CourtCourt: Further mention on July 28, 2022. July 28, 2022Before Hon M W Muigai – JC/A: GeoffreyMs Nzilani holding brief for Mr. Makundi for 1st & 2nd Accused persons and holding brief for Mr Mbuthia for 3rd Accused.Accused persons – presentMr Mwongera ODPP/Prosecutor - presentWe wanted to recall Pw8 who actually dealt with the Confession in light of Section 200 – 201 CPC. The issue is whether the Court can challenge the Confession that is admitted in evidence or not. We have filed written submissions on July 11, 2022. Ms Nzilani: The defense require 7 days to complete, file and exchange written submissions.Court: Mention on September 27, 2022. July 29, 2022Before Hon M W Muigai – JC/A: Geoffrey/KaumeAccuseds - Johnson Nzau Mutua – present in courtJohn kiamba mutua – present in courtBenson Mwanzia Nyele – presentMr Makundi for the 1st and 2nd accused persons present onlineMr Mbuthia for the 3rd Accused – AbsentMr Mwongera ODPP – presentMr Makundi: We have filed and served written submissions on September 27, 2022. Mr Mwongera: We filed written submissions on July 14, 2022Court: Ruling on October 27, 2022. The 3rd Accused’s Advocate Mr Mbuthia is at liberty to file and serve written submissions before the October 20, 2022 and serve through the Deputy Registrar Machakos High Court.Earlier Proceedings Before Trial CourtOn June 27, 2019 Mr Makundi for the 3rd Accused herein made an application to have Pw8 CIP Lawrence Wahome Muchoki who testified on April 10, 2019 to be recalled and this Court vide the Ruling by Hon DK Kemei J Ruling dated July 10, 2019 reads in part as follows;Par. 2“The 8th witness was No 23114 CIP Lawrence Wahome Muchoki who testified on April 10, 2019 and he was cross examined by Nzilani for the 1st and 2nd accused persons and Mbuthia for the 3rd accused person. On June 27, 2019, learned counsel Mr. Makundi for the 1st and 2nd accused persons sought to move court to reopen the case and have Pw8 recalled so that he may testify regarding an alleged confession that Pw6 had denied its existence.Par.12In this regard I find that the court is not satisfied that Pw8 should be recalled for purposes of being examined in chief as contended by the defence even though the court is fully aware that it has powers to call witnesses for purpose obtaining proper evidence under Section 173 Evidence Act that provides that:1. A judge or Magistrate may, in order to discover or to obtain proper evidence, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact whether or not it is otherwise admissible; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to object to any such question or order, nor, without leave of the court, to cross-examine the witness upon any answer given in reply to any such question.The above scenario might be the ideal situation when the need for recall is on the court’s own motion. This is not the case herein. The defense has not persuaded me that the request to examine the witness afresh by the defiance is based on any legal foundation. There is no need to reopen a case which is still ongoing and has not been closed yet.Par. 13I have accordingly come to the conclusion that the application to reopen the case herein lacks merit. The same is dismissed. The defense is at liberty to recall Pw8 only for further cross examination if need be. Otherwise the parties herein are directed to proceed to fix the matter for further hearing."

9. The Prosecution closed its case on November 11, 2020. Parties/Counsel filed written submissions.

10. In the Trial Court’s Ruling on case answer dated February 16, 2021, Hon DK Kemei J reads in part as follows;Par. 27“Having evaluated the prosecution evidence. I find that, in the absence of any explanation to the contrary from the defence, the prosecution evidence does establish the three (3) ingredients of the offence of murder. It is not in dispute that there was death as a result of strangulation.”Par.29“For those reasons, I find that the evidence adduced at this stage of the proceedings has established a prima facie case against all three accused persons to require them to be called upon to make a defence. Consequently, I find each accused has a case to answer and directed to elect to conduct their defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code.”

Submissions Prosecution submissions: 11. Article 49(1) of Constitution provides that an arrested person has the right not to be compelled to make any confession or admission that could be used in evidence against the person;Section 25 of the Evidence Act cap 80 provides that a confession then is an admission by words and conduct, or by a combination of both from which an inference can reasonably be drawn that the maker has committed an offence.Section 25A of the Evidence Act provides a confession or any admission of a fact tending to proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a Judge, a Magistrate or before a Police Officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.

12. Section 25A deals with confessions made by an accused person about his own involvement in the offence whereas Section 32 is confession made by an accused person touching not only on his own involvement but on the involvement of others.

13. Section 32(2) the confession has to have the effect of admitting in terms either the offence or substantially all the elements constituting the offence. Section (s) 26, 27 and 29 of the Evidence Act emphasizes that the confession taken form a person must be voluntary. When an accused persons objects to the admission of a confession, a trial within a trial must be held to determine its admissibility

14. In the case of Patrick Ngesa Ogama –vs- Republic [2005] eKLR it was held that;“In holding a trial within a trial the court is conducting inquisitorial proceedings to determine whether the accused voluntarily made the statement in issue. So when an accused person is called upon to make a statement in regard to the admissibility of that statement he is not putting forward a defense. That is because in that trial there is no accused person. The proceedings are confined to the circumstances under which the statement was made with reference to the ground or grounds the appellant has preferred for objecting to its admissibility. The Court of Appeal for East Africa stated in Dafasi Magayi and Others v Uganda [1965] EA 667, relying on the case of Kinyori Karuditu v R [1956] 23 EACA 480, that trial within a trial, is a rule of practice. And adopting a dictum by Lord Devlin in Connelly v DPP [1964]2 All ER 401 at 446, that court held that it is a practice which must be followed until it is declared to be obsolete."

15. In the case of Republic –vs- Nicholas Ngugi Bangwa [2015] KLR cited with approval the case of State of Rajasthan –vs- Raja Ram [2003) 8 SCC 180] the Court stated that such statements (confession) should;i.It should be made voluntarily and should be truthful;ii.It should inspire confidence;iii.An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.iv.For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;v.Such statement essentially has to be proved like any other fact and in accordance with law.

1St & 2Nd accused submissions 16. Under Section 150 of the Criminal Procedure Code the Court at any stage of a trial .. “may call any person as a witness .... or recall or re-exam a person already examined.....”

17. Section 146 (4) of the Evidence Act, Cap 80 provides as follows;4. “the Court may in all cases permit a witness to be recalled for further examination in chief or for further cross-examination of re-examination respectively.”In this case the Prosecution will have the right to lead Pw8 in his evidence in chief and the defence will cross-examine. As the Court observed in Young Mule –vs- Republic [2020] eKLR supra,“As the case is yet to be concluded a request for a recall of a witness by either the prosecution or defence should always be allowed to serve the internal of justice.”

18. Indeed the High Court is considered whether to allow a case to start de novo(though in this case it is only Pw8 they seek recalled) Ngugi J (as he then was, in Stephen Mburu Kinyua –vs- Republic [2016] eKLR noted the following considerations:-a.How far the trial had proceeded;b.The availability of witness who had already testified;c.........d.Prejudice to be suffered by either the prosecution and the accused if a new trial is allowed.

Finding 19. This Court is tasked with determination of the issue of recalling PW8 No 23114 CIP Lawrence Wahome Muchoki who testified on April 10, 2019 before the Trial Court.

20. The ODPP/Prosecution submitted before the Trial Court and before this Court that recall of the witness Pw8 was only for cross examination and not examination in chief as the witness testified and was cross examined by the Counsel for the Accused persons by Ms Nzilani & Mr Mbuthia respectively.

21. Upon this Court taking over the proceedings, proceedings were typed and availed to the Parties/Counsel/Prosecution and as legally required Section 200-201 CPC was read out and parties were to inform the Court on how to proceed.

22. Mr Makundi & Mr Mbuthia for the Accused persons sought recall of PW8 on grounds of examination in chief and cross examination so as to test the veracity of the Confession.

23. The Prosecution explained in detail efforts to avail the witness PW8 who retired from Police Service and thereafter made every effort as evidenced by the Court record and successfully availed PW8 on June 14, 2022 and the Defense sought examination in chief to be conducted by ODPP Mr Mwongera who declined on the basis of the fact that the witness was available for cross examination and the Defense declined and there was a stalemate. The Court asked parties through Counsel to research and file submissions to this question which Counsel complied with as outlined above.

Recall Of Witnesses In Part- Heard Proceedings 24. Section 200 Criminal Procedure Code"Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—a)…………………………………………………..b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummons the witnesses and recommence the trial.Section 201 CPCalso provides;"(1)…………(2)The provisions of Section 200 of this Act shall apply mutatis mutandis to trials held in the High Court."

25. Section 150 Criminal Procedure Codeprovides;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.

26. Section 146 (4) Evidence Act Cap 80 provides;(4)) 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 & re-examination respectively.

27. The Court has outlined the law that prescribes recall of witnesses during proceedings. Section 200 CPC prescribes recall of witnesses where a Judge or Magistrate ceases to exercise jurisdiction due to transfer promotion or unforeseen circumstances before the case is finalized. The Accused person is read out the options of Section 200-201 CPC and may opt to have trial commence afresh, recall witness (s) subject to availability or proceed from where the matter stopped.

28. Section 150CPC is the prerogative of the Court recall or summon any witness if the evidence appears essential to the just decision of the case.

29. Section 146 (4) Evidence Act prescribes that the Court should allow the recall and/or re-examination of witnesses.In the instant case this Court took over the matter after close of the Prosecution case and in exercise of Section 200-201CPC the Defense applied for recall of PW8 who testified on the production of the Confession produced as exhibit in Court on /during proceedings of April 10, 2019.

30. The Prosecution did not object to recall of Pw8 except for difficulty of availing the witness as he retired from the Police service but his attendance is only with regard to cross-examination.

31. This Court took over the hearing of the matter after the Trial Judge went on transfer and this Court came in on transfer. The Trial Court expressed logistical challenges to complete pending hearing/part-heard matters vide correspondence to the Presiding Judge on February 8, 2022.

32. This Court considered the fact of the pending proceedings since 2013 and opted to continue with the matter and rely on the already recorded part of the evidence without vitiating the accused persons legal rights by providing typed proceedings before taking directions under Section 200-201CPC. This position is also prescribed by the following case;

33. In Joseph Kamau Gichuki vs RCriminal appeal 523 of 2010 cited in Nyabutu & Another, the Court stressed that;“By dint of Section 200(1) (b) of the CPC a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete trial………. See Ndegwa vs R (1985) supra. In this case the Trial Judge passed on after having fully recorded evidence of 7 witnesses….in fact [he] had summed up to the Assessors. The trial, moreover, was not a short one but a protracted one which had taken 5 years to conclude. The passage of time militated against the Trial being started de novo…….”

34. In the case ofYoung Mule vs Republic Misc Crim Appl No 52 of 2020 DK Kemei J stated;“In this regard I find that the court is satisfied that that in order to accord justice to the applicant and having examined the trial court record, the trial court went into error in disallowing the application to recall the prosecution witnesses for cross examination. I have seen the need to recall the prosecution witnesses for cross examination. Recalling the prosecution witnesses for further cross examination does not amount to starting the case denovo. As the case is yet to be concluded a request for recall of witnesses by either the prosecution or defence should always be allowed to serve the interest of justice. There will be no prejudice caused to the prosecution if the witnesses are recalled for further cross examination as the prosecution counsel will have an opportunity to reexamine those witnesses if need be.”

35. In the case of Johnstone Korir vs Republic Criminal Revision E053 of 2022 where proceedings were to be recalled from the Trial Court for perusal and certification of the legality correctness and propriety of the matter after the Prosecution case was closed and the accused person was placed on his defense. LJ A Ongeri observed that the Accused person had the opportunity to cross-examine the prosecution witnesses and was to proceed with the trial and later file an appeal.

36. In Abdi Adan Mohamed v Republic[2017] eKLR, the Court of Appeal opined that Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution, and it applies to the High Court also in addition to Magistrates courts.

37. This Court noted from the record that a similar application to the instant application was made before the Trial Court and culminated with the Court Ruling of July 10, 2019 and allowed recalling of PW8 for further cross-examination. The opportunity was not taken up until the Prosecution closed its case. After, Submissions were presented the Trial Court delivered Ruling on February 16, 2021 on case to answer.

38. In the instant case this Court took over the matter after the Prosecution case was closed before the Trial Judge, parties’ through their respective Counsel were granted opportunity to file written submissions and thereafter, the Trial Judge after considering the evidence adduced, the law and submissions filed rendered the Ruling of February 16, 2021.

39. The Ruling of July 10, 2019 & February 16, 2021 are and remain valid, regular and legal orders of the Trial Court with similar, concurrent, competent and equal jurisdiction to/with this Court and this Court cannot reopen the Prosecution case in light of Section 200(3) CPC by recall of witnesses and /or hearing of the matter de novo because it would amount to rehearing a matter already heard and possibly setting aside Rulings delivered by the Trial Court. It is the Trial Court that heard the witnesses and thereafter evaluated the evidence by hearing the witnesses, observing demeanor and their credibility and recording their testimonies. To reopen the case by de novo hearing and/or recalling witnesses for examination in chief would amount to sitting on appeal of its own decision and this Court lacks appellate jurisdiction over its own decisions.

40. Section 200 CPC is applicable when the Prosecution case is not closed yet and that is why various alternatives are provided to safeguard the right to fair hearing of the Accused persons under Article 50 of Constitution.

41. Sections 150CPC is a preserve of the Trial Court to call or recall witness(s) or production of any document(s) in order to meet the ends of justice which is not the position here.

42. Section 146(4) of the Evidence Act applies towards conduct of criminal proceedings right up to close of prosecution case and conduct of defense proceedings.

43. This Court finds that the Prosecution cannot be assisted to prosecute its case by the Court and/or parties, that to have PW8 examined in chief except to be availed for further cross-examination as per Ruling of the Trial Court of July 10, 2019. The defense did not take up the matter of further cross examination of Pw8 upto November 11, 2020 when the Prosecution closed its case. The matter was raised during the taking over of proceedings by this Court at the Defense Hearing stage.

Disposition. 1. The recalling of witnesses and/or starting the case de novoas provided under Section 200-201CPC is applicable where the Prosecution case is not yet closed.

2. The Court cannot overrule for lack of appellate powers the Trial Court Rulings of July 10, 2019 & February 16, 2021.

3. The Defense may further cross-examine Pw8 as per Ruling of July 10, 2019.

4. If not, the Defense hearing to be set down for hearing on date convenient to parties.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn The Presence Of:Johnson Nzau Mutua )John Kiamba Mutua ) Accused PersonsBenson Mwanzia Nyele )Mukula H/b For Makundi - For AccusedMr. Mwongera - For The ProsecutionPatrick & Geoffrey - Court Assistant(s)