https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12051

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CRIMINAL CASE NO E086 OF 2021** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **PETER MUIRURI WANYOIKE-------------------------------------ACCUSED** **RULING** 1. The Murder information in this matter is dated 24th November 2021. 2. The Accused person was presented to court on the 25th November 2021. 3. The plea in this case was taken on the 26th November 2021. 4. Since then the prosecution has called the evidence of Six (6) witnesses only. 5. The prosecution now informs the court that they are left with two witnesses whom they have serious difficulties locating. 6. The prosecution counsel has told the court that the two remaining witnesses have no known fixed abode. 7. The prosecution has pleaded with the court for the court to grant them some more time to locate the witnesses. 8. It is not clear what method they intend to deploy to locate the witnesses which they could not for close to 5 years since the arrest and arraignment of the accused before this court. 9. The accused person has been in custody all this time and the prosecution has clearly been slow in prosecuting the case. 10. This court has severally warned against the calling of witnesses by instalments. 11. The calling of witnesses by instalments not only drags the trial but also exposes witnesses to witness fatigue and may at times culminate in the eventual relocation of witnesses to locations that the prosecution may never know. This is now is not speculative but is a lived reality in our courts and sadly causes unreasonable delays. 12. An accused person in a criminal trial is presumed innocent until he is proven to be guilty as per the provisions of Article 50 (2) of the Constitution. 13. The Accused person is placed squarely at the mercy of the investigator, the prosecutor and the court in determining the pace at which a criminal trial moves in our courts. 14. The accused sits innocently in the dock and in prison custody hoping that those that made statements in support of the case against him would come to court some day and tell their side of the story so as to have his guilt or innocence established. 15. The burden of proving the case against him lies with heh prosecution throughout the trial. **See Woolmington vs DPP {1935} AC 462.** It is therefore the duty of the prosecutor to avail witnesses assisted by the investigation officer. If they fail to do so an accused person must never be left at their mercy. 16. The accused is entitled to a fair speedy and expeditious trial in line with Articles 25, 50 and 159 of the constitution. 17. A trial that drags for 5 years with only 6 witnesses taking to the stand to testify cannot acquire a better description than that of a delayed trial.It is a settled principle that justice delayed is justice denied. 18. Justice is both to the victims of crime and the accused person as well. 19. The scales of justice must be evenly held to avoid putting an accused person’s right to a fair trial at the mercy of witnesses who for their own reasons are unwilling to appear or cannot be found. 20. The state by failing to robustly prosecute the matter since 2021 put their case at risk and they now must deal with the consequences of inertia. 21. The court is not persuaded that there is a reasonable and realistic prospect of the witnesses being located and brought before this court to testify. 22. To adjourn the matter further would defeat the letter and spirit of Articles 10, 25, 50 159 of the constitution. 23. The accused person’s trial should not be delayed any further awaiting the testimony of witnesses who may never be found 24. Section 205 of the Criminal Procedure envisages that for an adjournment to be granted there must be reasonable grounds for it. 25. This court has not been persuaded by the prosecution that such grounds exist thus the court hereby declines to order that these proceedings be adjournment. 26. The case shall proceed. 27. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **28th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Habiba: Court Assistant Ms Naulikha for state Gichuki for Accused Accused: Present