https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10549

Republic v Sichali & 4 others (Criminal Case E006 of 2025) [2026] KEHC 10549 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10549 (KLR) Republic of Kenya In the High Court at Kibera Criminal Case E006 of 2025 DR Kavedza, J July 16, 2026 Between Republic Prosecutor and William Imoli Sichali 1st Accused Edwin Oduor Odhiambo 2nd Accused Ebel Ochieng Alias Dave Calo 3rd Accused Isaack Kuria Alias Kush 4th Accused Allan Omondi Ogolla 5th Accused Ruling 1.During the hearing on 16th July 2026, the prosecution applied to recall one of its witnesses for the purpose of producing the motorbike alleged to be the subject matter of the offence. Learned counsel for the accused persons objected to the application. 2.Mr. Swaka submitted that the intended recall was an attempt by the prosecution to fill gaps in its case after the witness had testified without producing the motorbike as an exhibit. Counsel argued that the prosecution ought to stand or fall on the evidence already tendered and should not be permitted to strengthen its case through a recall of the witness. 3.Mr. Wanyanga further submitted that although the prosecution had indicated that it intended to recall the witness, it had not disclosed the scope of the recall. Counsel contended that neither the inventory relating to the motorbike nor ownership documents and other materials intended to be relied upon had been supplied to the defence. It was argued that allowing the recall would amount to trial by ambush. 4.Mr. Chacha associated himself with the objection and submitted that the accused persons would suffer prejudice if the witness were recalled to produce the motorbike and related documentary evidence. 5.Mr. Ogola also associated himself with the submissions made by Mr. Wanyanga and Mr. Chacha. 6.Having considered the rival arguments, the issues falling for determination are:a.Whether this Court has jurisdiction to recall a witness at this stage of the proceedings.b.Whether the intended production of the motorbike and any related documents is inadmissible on account of the alleged non-disclosure.c.Whether recalling the witness would occasion prejudice to the accused persons. 7.The first issue is whether the Court has jurisdiction to recall the witness. The power of a trial court to recall witnesses is expressly conferred by statute. Section 146(4) of the Evidence Act provides:“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re- examination respectively." 8.Similarly, Section 150 of the Criminal Procedure Code provides:“A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re- examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness." 9.The language of Section 150 is deliberately broad. It empowers the Court, at any stage of the trial, to recall a witness where the interests of justice so require. That jurisdiction remains available until the trial is concluded and judgment is delivered. The objective is to ensure that the Court determines the case on the basis of all relevant evidence rather than on technical omissions capable of being cured without occasioning injustice. 10.In Kulukana Otim v R [1963] EA 257, the former Court of Appeal for Eastern Africa stated:“It will be seen that the first part of the section confers a discretion, but under the second part, if it appears to a judge that the evidence of a person is essential to the just decision of a case, there is a mandatory duty on the judge (if the witness has not been called) to call him himself." 11.The same principle was considered by Ngugi J(as he then was) in Stephen Mburu Kinyua v Republic [2016] eKLR, where the learned Judge observed:“This is important because it would appear that the second part is triggered when the Court itself forms the opinion that the evidence to be called is essential to the just decision of the case. Section 150 implies that once a Trial Court comes to that conclusion, the duty to call that witness is triggered." 12.These authorities make it clear that the Court's primary duty is to ensure a just determination of the issues before it. Where relevant evidence is available and can properly be introduced through the recall of a witness, the Court should not decline to exercise its statutory discretion merely because the evidence was not produced at the first opportunity. 13.In the present case, photographs of the motorcycle have already been presented before this court and marked as MFI.22. The prosecution now seeks to recall the witness to identify motorcycle to the court. Additionally, the subject witness alluded at length to the motorcycle. In his testimony on 14th July 2026, during the viewing of the CCTV footage, he informed the court that he was riding motorcycle registration no. KMFZ 413W. In fact Mr. Chacha for the 5th accused cautioned the prosecution that disclosure of the motorcycle registration number would lead to exposure of a witness under the witness protection programme since his identity would easily be disclosed through a search on NTSA to which the prosecution had no objection. In my view, the recall is therefore merely for the purpose of identifying the physical exhibit to court. 14.I am inclined to disagree with the defence submission that the identification of the motorcycle to the court is introduction of new evidence and therefore amounts to trial by ambush. The Court is satisfied that the proposed evidence is relevant to the matters in issue and that recalling the witness falls squarely within the jurisdiction donated by Sections 146(4) of the Evidence Act and 150 of the Criminal Procedure Code. 15.On the second issue, the principal objection advanced by the defence is that the prosecution has not supplied ownership documents, inventories or other documents which it may seek to rely upon during the recall. 16.With respect, that argument conflates two distinct legal concepts, namely admissibility and evidential weight. Whether evidence is admissible is determined by the applicable rules of evidence. Whether the evidence is credible, authentic, reliable or sufficient to prove the prosecution's case is an entirely different question that falls to be determined after the evidence has been received and tested during the trial. 17.The intended production of the motorbike is not rendered inadmissible merely because questions exist regarding its ownership, chain of custody or supporting documentation. Those are matters that directly affect the evidential weight to be attached to the exhibit rather than its admissibility. 18.If, upon recall, the prosecution fails to produce ownership documents, inventories or any other material necessary to establish ownership or to connect the motorbike with the alleged offence, the defence will be fully entitled to argue that the exhibit has little or no probative value. Likewise, the prosecution will have the opportunity to establish ownership and authenticity through documentary or oral evidence. These competing arguments cannot properly be resolved before the evidence is tendered. 19.It would therefore be premature for the Court to exclude the proposed evidence on the basis of anticipated deficiencies. The proper course is to admit the evidence, allow it to be tested through cross-examination, and thereafter determine what weight, if any, should be attached to it when evaluating the entire body of evidence at the conclusion of the trial. 20.On the third issue, the defence has urged that recalling the witness will prejudice the accused persons. 21.Prejudice, in the legal sense, is not established merely because additional evidence is introduced. The prejudice contemplated by Section 150 of the Criminal Procedure Code is prejudice that deprives a party of a fair opportunity to meet the evidence. That concern is expressly addressed by the proviso to Section 150, which guarantees the right of cross-examination and empowers the Court to grant an adjournment whenever necessary to enable either party adequately to prepare. 22.Consequently, the accused persons will have every procedural safeguard available to them. They will be entitled to inspect the motorbike and any accompanying documents produced by the witness. They will have the full right to cross-examine the witness extensively on the ownership of the motorbike, its chain of custody, its authenticity, the inventory, the circumstances under which it was recovered, and any documentary evidence produced in support thereof. Should any document be introduced which requires further preparation, the Court retains the power to grant an adjournment to enable the defence to adequately prepare its response. 23.Far from occasioning prejudice, recalling the witness promotes the accused persons' constitutional right to a fair trial by ensuring that all relevant evidence is presented openly before the Court and subjected to adversarial testing. Excluding relevant evidence before it is tested would not advance the interests of justice. 24.The Court is therefore satisfied that no prejudice incapable of being remedied by law will be suffered by the accused persons. Any concerns regarding the credibility, authenticity or sufficiency of the prosecution's evidence remain matters for cross-examination and final submissions. 25.In the premises, the Court finds that it has jurisdiction under Sections 146(4) of the Evidence Act and 150 of the Criminal Procedure Code to recall a witness at any stage before judgment. The proposed evidence is relevant to the issues in dispute. The defence objection raises questions of credibility and evidential weight, not admissibility. Matters relating to ownership, authenticity, chain of custody and supporting documentation shall be determined after the evidence has been admitted and tested through cross-examination. The Court is satisfied that no prejudice will be occasioned to the accused, whose fair trial rights remain fully protected. 26.Accordingly, the objection is dismissed. The prosecution is granted leave to recall the witness. The defence shall have the right to inspect all exhibits and documents produced, cross-examine the witness thereon, and seek an adjournment if necessary.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026D. KAVEDZAJUDGEIn the presence of:Mr. Monda, Ms. Gichui, Ms. Timoi & Ms. Maina for the ProsecutionMr. Swaka for the 1st AccusedMr. Wanyanga b/b for Omwenga for the 2nd AccusedMr. Wanyanga for the 3rd AccusedMr. Ogolla for the 4th AccusedMr. Chacha for the 5th AccusedMr. Apollo Mboya for the VictimsMs. Karimi Court Assistant.