[2019] KEHC 3319 (KLR)
The court held that the accused persons, having changed counsel, are entitled to adequate time and facilities to prepare their defence, including access to committal bundles and typed proceedings. The court found that the application to recall witnesses was not ill-intended and was necessary for the new counsel to...
Source-derived case information.
- Citation
- [2019] KEHC 3319 (KLR)
- Parties
- Applicant: Republic; Defendant: William Kipkorir Chirchir; Defendant: Godfrey Kipng’etich Kirui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 28 of 2018
- Procedural Posture
- Criminal Case / Interlocutory Application During Trial
- Outcome
- Application to recall witnesses for further cross-examination allowed with limitations.
- Judges
- FM Mutuku
- Legal Topics
- Right to Fair Trial, Recall of Witnesses, Change of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
William Kipkorir Chirchir
Defendant
Godfrey Kipng’etich Kirui
Defendant
Procedural Posture
Criminal Case / Interlocutory Application During Trial
Legal Issues
- 1 Whether the accused persons are entitled to have their new counsel supplied with committal bundles and typed proceedings to prepare their defence.
- 2 Whether the accused persons should be allowed to recall prosecution witnesses for further cross-examination after change of counsel.
Ratio Decidendi
The court held that the accused persons, having changed counsel, are entitled to adequate time and facilities to prepare their defence, including access to committal bundles and typed proceedings. The court found that the application to recall witnesses was not ill-intended and was necessary for the new counsel to properly represent the accused. The court balanced the rights of the accused with the interests of the victims and directed that the recall of witnesses for further cross-examination be limited to areas not previously covered, to avoid unnecessary repetition and trauma to the witnesses. The prosecution retains the right to re-examine the witnesses after cross-examination by the...
Court Disposition
Application to recall witnesses for further cross-examination allowed with limitations.
Orders
- PW1, PW2, and PW3 are to be recalled for further cross-examination limited to areas not previously covered.
- The prosecution is granted the right to re-examine the witnesses after cross-examination by the defence.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 28 OF 2018
REPUBLIC………………………………………………….PROSECUTOR
VERSUS
WILLIAM KIPKORIR CHIRCHIR……………………....1ST ACCUSED
GODFREY KIPNG’ETICH KIRUI…………….................2ND ACCUSED
RULING
Three witnesses have testified for the prosecution. On 19th February 2019 this matter was adjourned to continue on 24th, 25th, 26th, 27th and 28th June 2019. When this court resumed sitting to hear this matter on 24th June 2019, Mr. Robert P. Onyango, learned counsel, addressed the court that he has been instructed to act for the two accused persons in this matter. Mr. Onyango told the court that upon taking instructions to represent the accused persons, he wrote to the court on 19th June seeking to have the matter mentioned on 20th June 2019 to enable him to make an application. Mr. Onyango explained that he was trying to avoid making that application on the date of hearing to avoid inconveniencing the court and other parties.
The main issue Mr. Onyango wanted to raise was to seek to be supplied with committal bundles because he was not able to get these from the former counsel representing the accused persons. There was also the issue of accessing typed proceedings to enable him prepare the case for his clients.
The application was opposed by Mr. Mbanya and Mr. Kamau for the victims. I however allowed the application and directed that we resume hearing on 26th June 2019. On that day Mr. Onyango told the court that he was not able to receive typed proceedings in time and that he had endevoured to read the proceedings despite the delay in being supplied with the same. He told the court that after reading the proceedings it had become necessary to recall PW1, PW2 and PW3 for cross examination because in his view there were gaps in the cross-examination of these witnesses. He also said he wanted to build his case and that this cannot done until he has cross-examined further the witnesses who have already testified.
Again this application was opposed by the prosecution counsel and counsel for the victims. The latter submitted that their clients were traumatized by the lengthy cross-examination by the former counsel for the accused.
I have considered the issues at hand. It is true that Mr. Onyango wrote to the court on 12th June 2019. The letter was received in court on 19th June 2019 and placed in the court file. The file was placed before me on 20th June 2019 for directions. I directed that the matter be dealt with during the hearing on 24th June 2019.
I am mindful of the rights of the accused persons and the victims in this matter. Among the rights of an accused person under Article 50 of the Constitution is the right to have adequate time and facilities to prepare the defence, (Article 50 (c)), and the right to choose and be represented by an advocate and to be informed of that right promptly, (Article 50 (g)). The accused persons have changed the advocate representing them and this is within their rights. Given what I have stated above in regard to the efforts Mr. Onyango has put in place to have the matter mentioned earlier than on the hearing date and the directions by this court, it is my view that the action of seeking more time to prepare for the defence and application to recall witnesses is not ill-intended. Perhaps had the letter received in court on 19th June 2019 been clearer as to the nature of the application sought, this court would have handled it differently. It should be recalled that the file was brought to my attention on 20th June 2019 on a Thursday when the hearing was scheduled for Monday 24th June 2019.
I have considered the application and the responses. My view is that the accused persons are within their rights to seek more time to allow their new counsel acquaint with the matter. Since the only issue now unresolved is the one on recalling witnesses, I hereby allow the application to recall George Kirubi Githima (PW1), Faith Wangchi Kimangu (PW2) and Bernard Chege Githima (PW3) for further cross-examination. However, given the detailed cross-examination they have undergone, I direct that the cross-examination should not be a repetition of what they have already been cross-examined on but on any area that defence feel was not properly covered. This directive should be strictly adhered to. The prosecution shall exercise their right to re-examine. I order so.
Dated, signed and delivered this 28th June 2019.
S. N. Mutuku
Judge