[2015] KEHC 5774 (KLR)
The court held that, following the amendment to Section 200 of the Criminal Procedure Code by Section 22 of the Security Law, once an accused has been put on his defence, the trial cannot be recommenced afresh. The accused's right to recall witnesses is curtailed at this stage, and the need for expeditious...
Source-derived case information.
- Citation
- [2015] KEHC 5774 (KLR)
- Parties
- Respondent: Republic; Applicant: Philip Osingo alias Churchil
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 8 of 2011
- Procedural Posture
- Criminal Murder / Ruling on Application to Start Trial Afresh After Judge Transfer and Defence Stage Reached
- Outcome
- application dismissed; matter to proceed to defence hearing forthwith
- Legal Topics
- Retrial After Judge Transfer, Section 200 Criminal Procedure Code, Right to Fair Trial, Recall of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Philip Osingo alias Churchil
Applicant
Procedural Posture
Criminal Murder / Ruling on Application to Start Trial Afresh After Judge Transfer and Defence Stage Reached
Legal Issues
- 1 Whether the accused is entitled to have the trial start afresh after the original trial judge was transferred and the case had reached the defence stage.
- 2 Whether Section 200 of the Criminal Procedure Code permits recommencement of trial at the defence stage.
- 3 Whether the accused's right to recall witnesses outweighs the need for expeditious trial under Article 50(1)(e) of the Constitution.
Ratio Decidendi
The court held that, following the amendment to Section 200 of the Criminal Procedure Code by Section 22 of the Security Law, once an accused has been put on his defence, the trial cannot be recommenced afresh. The accused's right to recall witnesses is curtailed at this stage, and the need for expeditious conclusion of trials as mandated by Article 50(1)(e) of the Constitution takes precedence. Since the applicant had already been put on his defence and directions under Section 200 had not been taken, the application to start the trial afresh was dismissed. The court ordered that the matter proceed to defence hearing without further delay.
Court Disposition
application dismissed; matter to proceed to defence hearing forthwith
Orders
- The application filed on 5th August 2014 is dismissed.
- The matter shall proceed for defence hearing forthwith.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER NO. 8 OF 2011
REPUBLIC …...................................................... PROSECUTOR
VERSUS
PHILIP OSINGO ALIAS CHURCHIL …...................... ACCUSED
RULING
By a Notice of Motion filed on 5th August 2014 the applicant PHILIP OSINGO alias CHURCHIL applied for orders:-
That this honourable court be pleased to admit the case to start afresh.
The application was supported by the affidavit of the applicant wherein he deponed that the case was tried and heard without the same being accorded vital facilities like prosecution witness statements and that the judge who heard the case went on transfer and would therefore wish that the case start afresh.
BACKGROUND
The accused person herein took his plea before justice M.A. Makhandia on 18th January 2011 when a plea of not guilty was entered for the same and his trial commenced before justice R-Lagat Korir on 6th June 2012 who took the evidence of ten prosecution witnesses and on 7th day of January 2013 put the accused on his defence before proceeding on a transfer.
The matter was subsequently listed before justice R.N. Sitati for defence hearing but from the court records, it seems that directions under Section 200 was never taken.
On 17th November 2014 this matter was listed before me when the same was fixed for direction on 20th January 2015 in view of the application herein stated when it was submitted by Mr. Ondari that since the accused had filed an application to have the matter start afresh he left it to the court to make a decision thereon.
Mr. Majale for the state submitted that since the matter had reached the defence stage securing the witnesses by the prosecution would not be possible. He further submitted that Section 22 of the Security Act and amended Section 200 so that when the case has reached the defence stage, Section 200 does not apply.
I have looked at Section 22 of Security Law which I hereby produce as follows:-
“22. The Criminal Procedure Code is amended in Section 200 by:-
a) Inserting the following new subsection (1) -
1A. A recommencement of trial under (1) (b) shall not affect the court'sfinding that the accused person has a case to answer.”
As the law now stands the applicant's right to recall witnesses can now not be exercised since he had been put on his defence. The accused's right to recall witnesses must be balanced against the provisions of Article 50(1)(e) which requires that the trial must begin and concluded without unreasonable delay.
I would in the final analysis dismiss the application filed on 5th August 2014 and order that this matter proceed for defence hearing forthwith.
Signed and dated on this 17th day of March, 2015.
J. WAKIAGA
JUDGE.
In the presence of:
Miss Boyon for the State
Mr. Sagwe for Mr. Ondari for Accused