[2023] KEHC 3496 (KLR)
The court held that since the prosecution had not closed its case, it retained the right to call additional witnesses, provided the defence was served with the relevant witness statements. The court found no legal basis to disqualify a witness solely because they had been present in court during other testimonies;...
Source-derived case information.
- Citation
- [2023] KEHC 3496 (KLR)
- Parties
- Applicant: Republic; Defendant: Erick Kabaka Sisei; Defendant: Nelson Kahavere; Defendant: Dan Esolio Sisei; Defendant: Kelvin Aseneka; Defendant: Boniface Stuma Egovwa; Defendant: Alice Minayo; Defendant: Catherine Kageha; Defendant: Truphena Muhonja Siva
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 38 of 2020
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application for Adjournment to Serve New Witness Statement
- Outcome
- Application for adjournment granted; prosecution to serve witness statement on defence.
- Judges
- WM Musyoka
- Legal Topics
- Adjournment of Trial, Witness Management, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Erick Kabaka Sisei
Defendant
Nelson Kahavere
Defendant
Dan Esolio Sisei
Defendant
Kelvin Aseneka
Defendant
Boniface Stuma Egovwa
Defendant
Alice Minayo
Defendant
Catherine Kageha
Defendant
Truphena Muhonja Siva
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application for Adjournment to Serve New Witness Statement
Legal Issues
- 1 Whether the prosecution should be allowed an adjournment to serve a new witness statement to the defence.
- 2 Whether the fact that the prospective witness has been present in court during other testimonies disqualifies them from testifying.
- 3 Whether the defence would suffer prejudice if the new witness is allowed to testify.
Ratio Decidendi
The court held that since the prosecution had not closed its case, it retained the right to call additional witnesses, provided the defence was served with the relevant witness statements. The court found no legal basis to disqualify a witness solely because they had been present in court during other testimonies; such presence only goes to the credibility of the witness, not their admissibility. The defence's objection was limited to the witness's presence in court, and there was no evidence before the court to establish prejudice or impropriety. The court was not persuaded that the defence would suffer prejudice if the witness was allowed to testify, and therefore granted the...
Court Disposition
Application for adjournment granted; prosecution to serve witness statement on defence.
Orders
- The prosecution shall serve the witness statement for the new witness on the defence counsel, Mr Didi.
- A date shall be allocated for mention before the Judge for further directions.
Full Case Text
Judgment text and source record
35 paragraphs
Republic v Sisei & 7 others (Criminal Case 38 of 2020) [2023] KEHC 3496 (KLR) (28 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3496 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 38 of 2020
WM Musyoka, J
April 28, 2023
Between
Republic
Prosecution
and
Erick Kabaka Sisei
1st Accused
Nelson Kahavere
2nd Accused
Dan Esolio Sisei
3rd Accused
Kelvin Aseneka
4th Accused
Boniface Stuma Egovwa
5th Accused
Alice Minayo
6th Accused
Catherine Kageha
7th Accused
Truphena Muhonja Siva
8th Accused
Ruling
1. When the matter came up for hearing on February 15, 2023, the prosecution indicated that it was not ready to proceed, for it had recorded a statement from a witness in January 2023, which it was yet to make available to the defence. The prosecution counsel, Mr Mbonzo, asked for adjournment, to allow the defence prepare sufficiently to handle that witness.
2. Mr Didi, Advocate for the accused persons, opposed that application. He protested that the witness, whose statement was the subject of the adjournment sought, had been attending court, and had heard the other witnesses testify. He described the application as a gimmick to delay the matter. He asked the court not to admit the statement.
3. In rejoinder, Mr Mbonzo submitted that investigations are a continuous process, and do not terminate once the accused are arraigned. He said that the prosecution case had not closed, and they could call any witnesses with respect to any evidence that that may crop up, and it was within their rights to even have the charges amended. He explained that that particular witness had been missing, he was an eyewitness, and he had been traced.
4. The prosecution has not closed its case, and, therefore, there is room for it to call whoever they wish to call as a witness, so long as the furnish the defence with his statement. The defence appears to be conscious of that, and I note that the only objection that Mr Didi appears to have is that the witness has been attending court, and has heard the other witnesses testify. I shall only limit my consideration to that objection by Mr Didi.
5. Both sides have not identified that witness by name, and I have no material upon which I can gauge whether he or she has been attending court, and listening to the other witnesses. In any case, the mere fact that a witness, who has not yet testified, sits in court while the other witnesses testify, is not a disqualifying factor. It only goes to the credibility of that witness. His evidence would be scrutinised more closely than that of the other witnesses, for the court to satisfy itself that his sitting in court, while the others testified, did not lead him to tailor his evidence to rhyme with what he heard from the other witnesses.
6. I am not persuaded that the defence would suffer prejudice, should that prospective witness testify. Let the prosecution serve the witness statement for that person on Mr Didi. A date shall be allocated at the delivery of this ruling, for mention before the Judge for further directions. It is so ordered.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 28TH DAY OF APRIL 2023. WM MUSYOKAJUDGEMr Erick Zalo, Court Assistant.AppearancesMr Mbonzo, instructed by the Director of Public Prosecutions, for the Republic.Mr Didi, Advocate for the accused persons.