[2017] KEHC 8546 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO. 72 OF 2010

REPUBLIC ………………………………………………………..……RESPONDENT

VERSUS

PATRICK MUNDIA MUIRU ……..……………..…………….….….…….. ACCUSED

RULING

BACKGROUND

1. The accused PATRICK MUNDIA MUIRU is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which are that on the 27th day of April, 2009 at Kangoo village within Central Province murdered JOSEPH MUNDIA MUIRU.

2. He pleaded not guilty to the said charges and on 4/10/2011 his trial commenced before Ombija J as he then was who proceeded to hear the evidence of the prosecution witnesses and put the accused on his defence who proceeded to testify before the said judge before being transferred from the division and subsequently retiring from the Judiciary at the time when the matter was pending for final submissions.

3. On 18/5/2016 the matter appeared before Kimaru J for directions when the accused through his Advocate then on record Mr. Njau submitted that he had no objection on the matter proceeding from where it had reached with the highlight of final submissions and judgment thereafter which was fixed for 20/6/2016 at which date the accused requested to be given a month to go through the proceedings before the final submissions which were then set for 26/7/2016 were made.

4. On 28/7/2016 the matter was placed before Lesiit J for direction when the accused made submissions that he needed to be provided with a new advocate since he had rejected his previous advocate upon which Mr. Wamwayi was appointed, who on behalf of the accused made an oral application for the matter to start de novo to which the court directed that the same file a formal application.

APPLICATION

5. By an application dated 8/12/2016 brought under the provisions of Section 200(3) of his Criminal Procedure Code, Section 2 and 4 of the Fair Administrative Act No. 4 of 2015 and Article 50(1), 2(g) and (h) of the Constitution of Kenya, 2010 the applicant sought for orders:

a) That the case be heard de novo.

b) That in the alternative the following witnesses be recalled:-

a) TERESIA NJAMBI – PW1

b) JOHN WAINAINA KABURU – PW2

c) CHRISTINE WANJIKU MUIRUI – PW3

d) PC CHRISTINE MAND – PW4 and that the applicant be allowed to call one JOHN KAMAU his brother as a witness.

6. The application was based on the grounds that the accused was not given an opportunity to recall witnesses and neither was that right explained to him after Justice Ombija ceased to exercise jurisdiction and, that the prosecution witnesses were fairly few and reside in Kiambu County and were easily available. That the accused did not have means to engage Mr. Njau advocate as his advocate and the same was dissatisfied with the manner the defence was conducted.

7. It was supported by the annexed affidavit in which it was deponed that the accused had no means of engaging a private lawyer and on a number of occasions Mr. Njau failed to attend court and never used to consult the applicant and that since he did not have faith in his previous advocate he prayed that the case start afresh or the named witnesses recalled.

SUBMISSIONS

8. On behalf of the applicant, Miss Njuguna submitted that the accused was not given the right to recall witnesses as per Section 200(3) CPC and that the same was not satisfied with Ms Njau Advocate then on record who he feels was hired by the family of the deceased to his prejudice.

9. On behalf of the State, Miss Mwaniki submitted that the applicant had been put on his defence who proceeded to testify and closed his case. It was submitted that it was only final submissions that were pending and that under Section 200 Criminal Procedure Code the accused has no right to start the matter de novo. It was submitted further that Section 308 of CPC the accused is only allowed to cross-examine witnesses at the defence stage if those witnesses not previously summoned to give evidence at the trial are in attendance and that the witnesses the accused sought to recall had already testified.

10. It was submitted that the accused never made any formal complaint against Mr. Njau Advocate from plea taking to the defence and in support thereof the case of JOSEPH KAMAU GICHUKI vs REPUBLIC Court of Appeal at Nairobi CR. APP. No. 523/10 was relied upon to support the submissions that the court must take into account how far the matter has proceeded, loss of memory and time that has passed since the last trial.

ANALYSIS AND DETERMINATION

11. Section 200 (3) of the CPC upon which this application is founded is worded as follows:-

200(3) “Where a succeeding magistrate commenced the hearing of proceedings and partof the evidence has been recorded by the predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.” (Emphasis added)

12. From a clear reading of this section the right to start hearing de novo can only be exercised where it is only part of the evidence that has been recorded by the predecessor of the trial court unlike the present case where all the proceedings were recorded by Justice Ombija save for final submissions which therefore brings this application under the provisions of Section 200(1)(b) where the law mandates the trial court to act on the evidence recorded by the predecessor and make the judgment or re-summon witnesses and recommence the trial.

13. Even where the court is persuaded to have the matter start de novo the Court of Appeal as submitted by the prosecution has stated that Section 200 of the CPC should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor and some of the considerations to be borne in mind before invoking Section 200 include; whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused. See JOSEPH KAMAU GICHUKI vs REPUBLIC (2013) eKLR.

14. In the case of JOSEPH KAMAU GICHUKI (Supra) the Court of Appeal quoted with approval the case of NYABUTO & ANOTHER vs REPUBLIC (2009) KLR 409which I find relevant and adopt in this matter as follows:-

In NYABUTO & ANOTHER V REPUBLIC, (2009) KLR 409, the appellants had been tried before a judge of the High Court who, after having fully heard the case and received the opinion of assessors, reserved the judgment to be delivered on notice. However, he died before he had delivered the judgment. The case was taken over by another judge who acted on the evidence recorded by the late judge and convicted the appellants and sentenced them to death. The appellants appealed to this Court on, among others, the ground that the trial judge erred in writing and delivering judgment without having heard any of the witnesses and upon evidence wholly recorded by another judge. In dismissing the appeal, this Court stated as follows regarding section 200(1) (b) of the Criminal Procedure Code:

“It is plain that the late Kaburu Bauni J died after he had heard and recorded the whole of the evidence in the trial. By dint of section 200(1) (b) of the Criminal Procedure Code 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 the trial. See Ndegwa vs R (1985) KLR 535. In this case the trial judge passed on after having fully recorded evidence from 7 witnesses and from the two appellants and had in fact summed up to the assessors. The trial, moreover, was not a short one but a protracted one which had taken over five years to conclude. The passage of time militated against the trial being startedde novo. Though prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution, and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants. Musinga J in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded.”

In the present appeal, we find that the succeeding magistrate acted properly under section 200(1) (b) of the Criminal Procedure Code and that the circumstances of the case fully justified that approach. There was no violation of section 200 (3) of the Criminal Procedure Code and that the appellant was not prejudiced so as to warrant an order for re-trial under section 200 (4) of the Criminal Procedure Code.

15. It is clear that the accused herein was adequately represented by an Advocate throughout his trial and did not make any complaint against the same until after the matter was taken over from Justice Ombija and the same opted for the matter to proceed from where the judge had reached only to make the current application upon the appointment of a new Advocate. I am unable to see any prejudice that the accused may suffer noting that Article 50 of the Constitution of Kenya 2010 requires that the trial begin and conclude without unreasonable delay. I have also taken into account that fact that most of the prosecution witnesses are related to the accused person and starting the trial afresh will not be in the best interest of the cause of justice.

16. In the final analysis I find no merit on the application herein which I hereby dismiss and order that the trial proceed from where it had reached by parties highlighting their submissions herein.

DATED, DELIVERED and SIGNED at Nairobi this 7th day of February, 2017

…………………………………….

J. WAKIAGA

JUDGE

In the presence of:-

Miss Mwaniki for the State

Mr. Wamwayi for the accused

Accused present

Tabitha court clerk