https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6947

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KISII** **CRIMINAL CASE NO. E056 OF 2023** **REPUBLIC…………………………………………PROSECUTOR** **=VERSUS=** **STEPHEN CHARLES WAMBURA** **ALIAS ORENGE……………………………………….ACCUSED** **RULING** 1. This case was partly-heard with five prosecution witnesses having testified. The hearing proceeded before the then trial Judge Odera J who has since been transferred to another station. 2. When this case came up before me on 21st May 2026, I directed that directions be taken under Section 200 of the Criminal Procedure Code (Cap 75 Laws of Kenya) as to whether the case should start *de novo*, or proceed from where it had reached. 3. When put to election, the Accused stated the case should start *de novo*. As that he had never been served with any document in this case. Further that he was in those proceedings represented by a different Advocate, and that now he has a new Advocate. 4. That request was opposed by the prosecution counsel Mr Koima. Who in opposing the same, stated that the Accused was supplied with all the statements and documents, and that there is an inventory to that effect. Further that the case has proceeded substantially. Also that the 5th witness who is the Investigating Officer for this case, was stood down in the middle of his testimony. That the witnesses were students of Kisii Polytechnic in various years of their studies. Hence that some completed their studies and left, and that it may be difficult for the state to procure them again. ***Analysis and Determination*** 1. I have considered the Accused’s wish, and the Prosecutor’s opposition. As well as the reasons put forth by them. Section 200 of the Criminal Procedure Code allows the Accused to elect whether a partly-heard case that is now before a different Judge, should proceed from where it had reached, or start *de novo*. 2. It need be clarified, that, that election is neither binding on the court; nor does it confer upon the Accused the absolute liberty to dictate to the court, how the case should proceed. In determining whether the case should start *de novo*, or proceed from where it had reached, the court will consider among other things not only the opinion/election of the Accused and the narrow prism of the rights of the Accused, but also practicability; the interest of the complainant or victim; as well as the wider interests of justice generally. 3. Except where it is reasonably impracticable or is against the interest of justice or is likely to result in miscarriage of justice, where the case has proceeded substantially as in this case, the court will be more inclined to directing that the case proceeds from where it had reached. 4. The factors to be considered in whether to start the case de novo or to proceed from where the case had reached include the following: 5. *The extent to which the case had proceeded;* 6. *The duration case had taken, from inception, to where it had reached;* 7. *The number of witnesses that had testified, vis a vis the number of witnesses that have remained;* 8. *The availability of the remaining witnesses as well as the likelihood of procuring them without delay;* 9. *The type of witnesses that have already testified, e.g if any of them were under witness protection;* 10. *The comparative demonstrable prejudice the Accused is likely to suffer, if the case were to proceed from where it had reached; and* 11. *Where it is reasonable, the balance of convenience.* 12. In my considered view, starting *de novo* should be an exception rather than the norm. It should be opted for, in the most compelling and exceptional circumstances. But not as a matter of course, or mere option. It must be justified by reasonable and legally sufficient grounds. 13. As the court is a master of its processes, it could not have been the intention of the law-makers that Section 200 of the Criminal Procedure Code arrogate to the Accused the right to take over and drive proceedings. Especially in the post-2010 Constitutional dispensation, where the rights of victims have been mainstreamed alongside those of the Accused. 14. For the aforegoing reasons, the Accused’s request for this case to start *de novo*, is hereby declined. Hence it is hereby directed that this case proceeds from where it had reached. **DATED** and **DELIVERED** at **KISII** on this 21st day of May 2026. **PROF (DR) NIXON SIFUNA** **JUDGE**