[2022] KEHC 2031 (KLR)
The court found that recalling the witnesses would likely cause undue delay in the proceedings due to the difficulty in tracing them, as they were street boys without fixed abode. Such delay would prejudice all parties, including the court, by forestalling the discharge of its mandate. Furthermore, the court held...
Source-derived case information.
- Citation
- [2022] KEHC 2031 (KLR)
- Parties
- Respondent: Republic; Defendant: Rose Gakii
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 53 of 2017
- Procedural Posture
- Criminal Case / Ruling on Application to Recall Witnesses
- Outcome
- application dismissed
- Judges
- CA Otieno
- Legal Topics
- Recall of Witnesses, Criminal Procedure, Evidence Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Rose Gakii
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Recall Witnesses
Legal Issues
- 1 Whether the defence is entitled to recall prosecution witnesses for identification of photographs.
- 2 Whether recalling the witnesses would cause undue prejudice or delay to the proceedings.
Ratio Decidendi
The court found that recalling the witnesses would likely cause undue delay in the proceedings due to the difficulty in tracing them, as they were street boys without fixed abode. Such delay would prejudice all parties, including the court, by forestalling the discharge of its mandate. Furthermore, the court held that the case belongs to the prosecution, and any omission of evidence would prejudice the prosecution and benefit the defence. Therefore, the application to recall the witnesses lacked merit and was dismissed to allow the matter to proceed as scheduled.
Court Disposition
application dismissed
Orders
- The application to recall Pw 1 and Pw 2 is dismissed.
- Let the matter proceed as scheduled.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 53 OF 2017
REPUBLIC …………………………………..PROSECUTOR
VERSUS
ROSE GAKII………………………………………ACCUSED
RULING
1. An order for recall of witness should be given freely whenever the justice of the case demands and provided no prejudice is visited on any of the parties.
2. Here the defence puts the case forward that they want the two witnesses Pw 1 and Pw 2 to be recalled so as to identify the photographs which served upon them on 13th January 2022. The reason is that the witnesses were never shown the photographs when they testified to enable them identify the deceased and the scene.
3. In opposing the request Mr. Maina expressed difficulty in tracing the witnesses who he says were street boys and without fixed aboard. That fact has not been denied by Mr. Omari.
4. I hold the view that if tracing the witnesses will be difficult, it will only work towards delaying the conclusion of the matter. That is a prejudice that visits everybody including the court that would be forestalled from discharging its mandate.
5. In any event the case belongs to the prosecution so that if any evidence was to be left out or left hanging, it will be a prejudice to the prosecution and a benefit to the defence.
6. I find no merit in the application and I order it dismissed. Let the matter proceed as scheduled.
Dated, signed and delivered at Meru this 10th day of February, 2022
Patrick J.O Otieno
Judge
In presence of
Mr. Omari for the accused
Mr. Maina for the prosecution
Patrick J.O Otieno
Judge