https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9525

Republic v Osodo & another (Criminal Revision E002 of 2026) [2026] KEHC 9525 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9525 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Revision E002 of 2026 A Mabeya, J July 3, 2026 Between Republic Applicant and Michael Kiyogo Osodo 1st Respondent Kennedy Odhiambo Osodo 2nd Respondent Ruling 1.Annette Rita Maloba “the applicant”, through her Advocates Kanyoko Lewis & Co, has by a letter dated 23/2/2026 applied for the revision of the orders made on 22/1/2026 in Nyando criminal case no E660 of 2024 Republic vs. Kennedy Odhiambo Osodo. 2.The applicant is the complainant in that criminal case. She complained that, on the particular day, the trial court made an order for the prosecution to close its case yet the prosecution’s last witness, the investigations officer was yet to testify. That the investigations officer was present online and ready to testify as other two witnesses had testified on the same date. That this was the third time the matter was coming up for hearing and in all hearing dates witnesses were available. 3.She complained that that was procedurally incorrect and amounted to usurping the powers of the ODPP. 4.I have called for and perused the original record of criminal case no E 660 of 2024. In that case, two accused persons Kennedy Odhiambo Osodo and Michael Kiyogo Osodo took plea on 16/9/24, for two counts, malicious damage to property and cutting crops of cultivated produce. They both denied the charges and a plea of not guilty was entered. Hearing was set for 13/3/2025. 5.On that date, the matter proceeded with two prosecution witnesses testifying. The prosecution applied for an adjournment because the remaining witnesses were not in court. There was no objection to the application for adjournment. The court allowed the adjournment but ordered that it be a last adjournment. It set the hearing 24/7/2025. 6.On the said 24/72025, the matter again proceeded with two witnesses testifying. The prosecution again applied for adjournment as it needed to supply the defence with documentary evidence and there were no other witnesses in court on that day. That one PC. Wanjohi had been transferred to Tana River and the other witness PC Mwiti was at Kiganjo Training College. 7.The defence objected to the application on the basis that the witnesses could access the court virtually. While allowing the adjournment, the court noted that the reasons given by the prosecution were not merited and exhibited lack of preparedness. It extended the last adjournment orders to 22/1/26. 8.On the said 22/1/2026, the prosecution paraded two witnesses who testified and were cross-examined. Then the prosecution applied for adjournment on the basis that its witness, one Sgt Wanjohi was away in Tana River. That he did not have any signal in his file to show that the witness had been notified of the hearing date. Mr. Otieno watching brief for the complainant informed the court that the said witness was experiencing difficulties logging into the virtual Court. The court then adjourned the matter to 11:50am. 9.When the court resumed at 11.15am the prosecutor told the court that the witness was experiencing technical hitches. challenges. Mr. Otieno supported the prosecutor’s application indicating that the witness had actually logged in court for about 30 minuets then his phone went off. He further indicated that the prosecutor had always presented witnesses on all the hearings and that the matter would collapse if the witness who was the investigation officer did not testify. 10.In its ruling, the court observed that the prosecution ought to have been ready with all the witnesses. That there was no evidence that a signal had been made to the said witness informing him of the hearing date. The court further noted the prosecutor was not ready on the previous hearing. The court consequently declined the prosecutors’ request for an adjournment. The prosecutor, having no option, closed its case. 11.It is the foregoing proceedings that the applicant has invited the Court to satisfy itself as to its regularity or otherwise. Whether the trial court usurped the powers of the ODPP by ordering the prosecution to proceed when the prosecution and the complainant had given reasons why the witness could not attend. 12.Section 362 of the Criminal Procedure Code provides: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 13.While section 364 (1) thereof provides that: -“In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—a)…b)in the case of any other order other than an order of acquittal, alter or reverse the order. 14.The present complaint has been raised by the victim. That is perfectly in order in view of the provisions of the section 9 of the Victims Protection Act. 15.The trial court declined the prosecutions application for adjournment on the grounds that there was no evidence that the subject witness had been signaled to attend court on that day and that the prosecution was not ready the previous hearing. 16.What is being challenged is the discretion of the trial court not to grant an adjournment. The exercise of the discretion by a court is not to be disturbed easily. It is within the discretion of a trial court to grant or refuse an adjournment. However, like in all discretion, such a discretion is to be exercised judiciously and not capriciously. 17.The record is clear that at all times the matter came up for hearing, the prosecution produced two witnesses on each occasion. Those witnesses testified and were cross-examined. Even on the material day, two witnesses testified. The court was earlier on told that the particular officer had been transferred to Tana River. The court was also informed on the particular day that the said witness had tried to join virtually but had technical hitches. That is why the court itself adjourned to 11.50am to give that witness time to join the proceedings virtually. 18.Even after the court resumed at 11:15am, the court was informed by the Counsel for the victim that the subject witness had joined the proceedings for 30 minutes but the phone went off. The court should have taken judicial notice of the following: -a.The geographical position of Tana River in the Map of Kenya;b.Tana River is one of the marginalized areas in Kenya which is not expected to have the luxuries other well endowed areas of Kenya enjoy, such as electricity and internet connectivity;c.That virtual hearings have their own challenges although they have been sanctioned in the Kenyan Judicial system so as to advance the right to access justice under Article 48 of the Constitution of Kenya. 19.After taking judicial notice of the foregoing, the trial court should have considered that at all hearings, the prosecution never failed to produce a witness. The case proceeded with the hearing at all times. It was not a case of dithering. The victim was represented in the proceedings at all times. That although the court had previously given a last adjournment, there was special circumstances in that, on that day two witnesses attended and that the last witness was said to be having technical challenges to join the proceedings. 20.Finally, the trial court failed to consider that there was remaining only one witness for the prosecution to close its case. Moreso, the court failed to address its mind to the serious issue raised by Counsel for the victim that the remaining g witness was crucial, being the investigations officer, and failing to take his evidence would collapse the case that had been so far prosecuted. 21.With all the foregoing, the trial court wrongly exercised its discretion and its decision did not result from properly weighing the materials before it nor the competing interest of those before it. While the rights of the accused are to be considered, those of the victims are likewise to be considered by the same court. 22.Accordingly, I find that the decision to decline the adjournment was wrongly exercised and made. I order that the same be set aside and the prosecution be allowed to call its last witness.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE