[2018] KEHC 2532 (KLR)
The court found that, although the record did not show that certain witnesses were sworn, both counsel and the accused confirmed that the witnesses were indeed sworn before testifying. Given the age of the matter, the prolonged custody of the accused, and the agreement of all parties, the court exercised its...
Source-derived case information.
- Citation
- [2018] KEHC 2532 (KLR)
- Parties
- Applicant: Republic; Defendant: Patius Gichobi Njai; Defendant: Caesar Wachira Muthoni; Defendant: Mary Njeri Wachira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 45 of 2012
- Procedural Posture
- Criminal Case / Ruling on Application for Review of Previous Orders
- Outcome
- Application for review of order granted conditionally.
- Legal Topics
- Review of Orders, Unsworn Witnesses, Procedure on Evidence, No Case to Answer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Patius Gichobi Njai
Defendant
Caesar Wachira Muthoni
Defendant
Mary Njeri Wachira
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Review of Previous Orders
Legal Issues
- 1 Whether the order for the matter to start de novo should be reviewed in light of the alleged swearing of witnesses.
- 2 Whether the failure to record witnesses as sworn invalidates their testimony.
- 3 Whether the accused can waive the objection to unsworn evidence for purposes of expediting the trial.
Ratio Decidendi
The court found that, although the record did not show that certain witnesses were sworn, both counsel and the accused confirmed that the witnesses were indeed sworn before testifying. Given the age of the matter, the prolonged custody of the accused, and the agreement of all parties, the court exercised its discretion to review the previous order for the matter to start de novo. However, this review was conditional upon all counsel, the prosecuting counsel, and the accused swearing affidavits confirming that the relevant witnesses were sworn and waiving any future objection on the ground of unsworn evidence. This approach balanced the need for procedural regularity with the interests of...
Court Disposition
Application for review of order granted conditionally.
Orders
- The order for the matter to start de novo is reviewed and will not take effect if all counsel, prosecuting counsel, and accused swear affidavits confirming the relevant witnesses were sworn and waiving the objection to unsworn evidence.
- Upon compliance, the court will proceed to rule on whether there is a case to answer.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 45 OF 2012
REPUBLIC...........................................................PROSECUTOR
VERSUS
PATIUS GICHOBI NJAI & 2 OTHERS.............1ST ACCUSED
CAESAR WACHIRA MUTHONI......................2ND ACCUSED
MARY NJERI WACHIRA..................................3RD ACCUSED
RULING
Following this Court’s Ruling of 31st July 2018, the accused persons have filed an application by way of Notice of Motion for review of the orders made therein. The application is supported by the affidavit. Patius Gichoki Njagi the 1st accused and the grounds on its face. The main order sought to be reviewed is the one for the matter to start de novo. Mr Okatch for the 1st accused in his submissions cited to the Court three (3) options for consideration i.e.
(i) For the court to set aside the orders of 31/7/18 in their entirety and render a decision on whether the accused have a case to answer or not
OR
(ii) Recall PW2, PW4, and PW5, PW6, and PW9 to give their evidence afresh
OR
(iii) Recall PW2, PW4, PW5, PW6 and PW9 to adopt their evidence on oath.
He asked the court to consider the period the accused persons have been in custody and the fact that over 15 witnesses testified. He said the application was supported by the 2nd and 3rd accused persons.
M/s Onunga for the State supported the application. She concurred that an anomaly had occurred but it was agreed that all witnesses were sworn and cross examined. She asked the court to appreciate the age of the matter and the witnesses too as it makes its decision.
I have considered all that has been submitted by both counsel and the averments by the 1st accused. There is no dispute that this is an old matter and the accused have been in custody for a number of years. It is also not disputed that this is a court of record and the said record shows that the named witnesses were not sworn despite their having been cross examined.
The Counsel and accused persons have told the court that the witnesses were indeed sworn. I have given this matter quite some thought and antagonised over the same. I will review the order for the matter to start de novo on one condition. The condition is that the Prosecuting Counsel, all counsel appearing and the accused persons to each swear an affidavit and confirm 2 things namely:
(i) That the mentioned witnesses, PW2, PW4, PW5, PW6, and PW9 were sworn before they testified
(ii) That they will not take up that issue of unsworn witnesses as a ground of appeal
Once that is complied with, I shall move to the next stage of writing the Ruling on the no case to answer.
Orders accordingly.
Signed, dated and delivered this 30th day of October 2018 n open court at Nairobi.
........................................
HEDWIG I. ONG’UDI
JUDGE