[2015] KEHC 4415 (KLR)
The court found that since PW2's cross-examination was not completed due to illness, and his evidence has been submitted on by the defence, it would be in the interest of justice to reopen the prosecution case to allow the witness to be recalled for purposes of cross-examination and re-examination. The court noted...
Source-derived case information.
- Citation
- [2015] KEHC 4415 (KLR)
- Parties
- Applicant: Republic; Defendant: Pauline Chemutai Bii
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 36 of 2014
- Procedural Posture
- Criminal Case / Preliminary Ruling on Reopening Prosecution Case
- Outcome
- Ruling deferred; parties to be heard on whether prosecution case should be reopened to recall PW2 for cross-examination and re-examination.
- Legal Topics
- Reopening Prosecution Case, Cross Examination, Witness Recall
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Pauline Chemutai Bii
Defendant
Procedural Posture
Criminal Case / Preliminary Ruling on Reopening Prosecution Case
Legal Issues
- 1 Whether the prosecution case should be reopened to allow PW2 to be recalled for cross-examination and re-examination.
- 2 Whether the evidence of PW2, whose cross-examination was not completed, can be relied upon.
Ratio Decidendi
The court found that since PW2's cross-examination was not completed due to illness, and his evidence has been submitted on by the defence, it would be in the interest of justice to reopen the prosecution case to allow the witness to be recalled for purposes of cross-examination and re-examination. The court noted the age of the matter and the multiple changes in judicial officers and counsel, which may have contributed to the omission. However, before making a final order, the court seeks to hear from both the State and the defence on the issue.
Court Disposition
Ruling deferred; parties to be heard on whether prosecution case should be reopened to recall PW2 for cross-examination and re-examination.
Orders
- Parties to address the court on the issue of recalling PW2 for cross-examination and re-examination before a final order is made.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL CASE NO.36 OF 2009
REPUBLIC...........................................................PROSECUTION
VERSUS
PAULINE CHEMUTAI BII...............................................ACCUSED
COURT OBSERVATION
This matter is coming up for Ruling today but I have not been able to prepare the said Ruling for the following reasons;
SIMON KIBET who testified as PW2 was stood down in the process of cross-examination by the defence Counsel Mr. C.K.Korir on 8th March, 2011.
The reason for standing him down was that he fell ill while in the witness box and the Court could not allow him to proceed.
I have gone through the record and have not found any evidence showing that the said witness was ever recalled for the completion of that process of cross-examination.
I appreciate that this is an old matter which has been handled by three (3) Judges, two defence Counsels and several prosecutors, hence the high chances of such omissions.
The evidence of this witness has been submitted on by the defence, yet cross-examination of him was not completed.
It would be in interest of justice in this case that the Prosecution case be reopened to allow this witness to be recalled for purposes of cross-examination and re-examination.
But before I do that I wish to hear from the State and the defence on the same issue.
Dated, signed and delivered in open court this 12th day of June, 2015.
H.I.ONG'UDI
JUDGE