[2021] KEHC 9234 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO 34 OF 2017

REPUBLIC...........................................................DPP

VERSUS

SAMUEL NDUNGU NJOROGE...............ACCUSED

R U L I N G

1. Samuel Ndungu Njoroge is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty to that offence. His trial commenced before Justice C. Meoli on 9th December 2019. On that day two of the prosecution witnesses testified. These were prosecution witness number 1 (PW 1) and number 2 (PW 2). The trial was supposed to resume on 6th and 7th July 2020 but was further postponed because courts were not sitting due to the COVID-19 pandemic and the preventative measures taken by the judiciary.

2. On 10th December 2020 when this matter came up for mention before me I requested the accused to elect whether to start the case de novo, to recall witness who had testified or to proceed from where the trial stopped. This was in compliance with Section 200 of the Criminal Procedure Code. The accused elected to recall PW1.

3. The accused’s Learned Counsel supported the application for recalling PW1 on the submission that PW1 did not voluntarily testify on 9th December 2019 but that she was forced, by the Court, to testify by being placed in custody before giving her testimony. It was on that basis that the accused stated he should be given an opportunity to test PW1’s testimony.

4. The application was opposed by Director of Public Prosecution (DPP). DPP stated that the accused had failed to state what part of PW1’s testimony she will be recalled to give. Further that her attendance will be difficult to obtain.

ANALYSIS AND DETERMINATION

Section 200(3) of the Criminal Procedure Code provides:

"(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

5. That Section, as per Section 201 (2), applies Mutatis Mutandis to the High Court. The application of that Section was considered by the Court of Appeal in the case Abdi Adan Mohamed -v- Republic (2017) e KLR as follows:

“The re-summoning of a witness or witnesses and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence accordingly.

The learned Judges in Ndegwa (supra) emphasised that the court in applying the provisions of section 200 must ensure the accused person is not prejudiced. They said:

“…No rule of natural justice, no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration….”

Because of the importance of having a trial conducted from commencement to conclusion by the same magistrate or judge Section 200(4) provides that;

"Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

Section 200therefore entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution.

It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts. To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trialde novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had 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 v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R,(2009) KLR 409, where the Court stressed that;

“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 v. R.(1985) KLR 535. ”

6. I therefore approach the request made by the accused on the basis that Section 200 is intended to ensure the accused person is not prejudiced by a magistrate/judge who take over of a partly heard case not being able to independently assess the demeanour or credibility of a witness. The case of Abdi Adan Mohamed (supra) makes it clear that the request for recalling of witness or for hearing the case de novo should not be made where the demands would be impossible to grant and should be made sparingly.

7. In this case DPP stated that it would be difficult to secure attendance that of PW1who resides in Lari. The accused’s learned counsel did not contradict nor question that submission. This court therefore presumes that indeed is the position, that the attendance of PW1would be difficult to secure.

8. Further I have noted that the Justice C. Meoli, before PW1 testified, made a finding that the accused, who is PW1’s stepson, was interfering with PW1 which interference was evident from PW1’sreluctance to testify. As a consequence, the court on 4th June 2019 ordered PW1 to be remanded in custody up to 10th June 2019 in compliance to Section 152 (1) (b) of the Criminal Procedure Code. The court did also on that date cancel the accused’s bond and remanded him in custody.

9. PW1 did eventually testify on 9th December 2019 and she was subjected to cross examination by the accused counsel. It is pertinent to note that no single question put to PW1 in that cross examination was directed on whether or not PW1 was testifying out of her own free will or not.

10. I have carefully considered the testimony of PW1 given on 9th December 2019. I find that the stage at which this case, a 2017 case, has reachedand the fact that DPP’s allegation that attendance of PW1 would be difficult and which did not get rebuttal and because the accused’s counsel did not question PW1 on her reliability, while cross examining her there is no basis for recalling PW1 in this matter. I find the accused will not suffer prejudice/injustice for not recalling PW1.

11. In view of that finding the accused’s request to recall PW1is denied. Further hearing date of this case shall be fixed at the reading of this Ruling.

SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF FEBRUARY 2021.

MARY KASANGO

JUDGE

11th February 2021

Before Justice Mary Kasango

C/A - Kevin

Accused – Samuel Ndungu Njoroge - Present

For the Accused – Mr. Olaka holding brief for Njehu

For the DPP – Miss Kathambi

COURT

Ruling virtually delivered in their presence.

MARY KASANGO

JUDGE