[2022] KEHC 1956 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION-MILIMANI

CRIMINAL REVISION NO. E063 OF 2021

ROSSLYNE……………………………….…………………….APPLICANT

VERSUS

REPUBLIC……………….………………………..………...RESPONDENT

RULING

1. Rosslyne Kamau, the Applicant, was arraigned following allegations of having obtained money by false pretence from twelve complainants. Having denied the charges, trial commenced before Hon. C.C. Oluoch (SPM) on the 11th May, 2016. When the matter came up on the 18th May, 2017, the learned trial magistrate who was seized of the matter had been transferred. The succeeding magistrate, Hon. P.O. Ooko (PM) complied with the provisions of Section 200 (3) of the Criminal Procedure Code (CPC) and it was indicated that the matter proceeds from where it had reached without re-calling of witnesses who had testified, therefore the court so ordered and the case proceeded with two (2) more witnesses testifying.

2. On the 2nd November, 2020, Hon. P.O. Ooko having ceased to exercise jurisdiction in the matter was succeeded by Hon. D Ndungi (SRM). On the 12th January, 2021, the court explained Section 200 of the Criminal Procedure Code (CPC) to the applicant and it was indicated that she wished to proceed from where the case had reached. An order to that effect was made, but, proceedings were to be typed.

3. Subsequently, the applicant approached this court through an application dated 9th March, 2021, where she seeks an order of this court directing re-call of all witnesses who had previously testified and also to make an order that will be in the best interest of the justice.

4. The application is premised on grounds that the lawyer representing the applicant at the lower court informed the court that the matter should proceed from where it had reached instead of starting de novoon the basis that the case was before a different magistrate. This, in the applicant’s opinion is prejudicial to her fair trial rights as the new magistrate would not have the re-collection of the witnesses who have testified.

5. At the hearing of the application, learned Counsel for the applicant, Ms. Lubanga, urged that the previous counsel acted ultra vires when he said that the case could proceed from where it had reached. That after she was instructed she informed the court that the accused (applicant) wished to invoke her rights as per Section 200 of the Criminal Procedure Code (CPC) to have witnesses re-heard but the court declined and directed that the matter proceeds from where it had reached. She relied on the case of Ndegwa vs. Republic (1985) eKLRin that regard and argued that it is important for the rights of the accused to be upheld.

6. In response thereto, the State through learned Counsel, Mr. Mutuma, urged the court to dismiss the application. He submitted that Section 200 of the Criminal Procedure Code (CPC) is not absolute. That all the judicial officer is required to do is to advise the accused person of his rights. That the matter only starts de novo when the judicial officer finds that the accused stands to be prejudiced, where the accused is not represented by counsel.

7. That the accused was represented by counsel and there was no time she told the court that the advocate acted outside the instructions of the accused. That the law does not require that when the accused instructs another advocate the case starts de novo, therefore, the section was correctly applied.

8. I have duly considered the application, supporting affidavit, and rival arguments of both counsels. Section 200 (3) of the Criminal Procedure Code (CPC) provides thus:

Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrateshall inform the accused person of that right.

9. Looking at the record, what transpired before court is captured thus:

“12. 01. 2021

Before Hon. D. Ndungi (Mr) SRM

Pros: Omariba

C/A: Lydia

…………

Order:

Section 200(3) of the CPC is hereby duly explained to the accused in English language which she understands. The accused states:

Accused- I opt to proceed from where the case had reached.

Signed

12/1/2021

Ngonga: The case can proceed from where it had reached. Proceedings be typed.

Signed

12/1/2021”

10. This resulted into the court making the order that the case proceeds from where it had reached.

11. On 24th February, 2021, Ms. Lubanga came on record representing the applicant and sought to have the matter heard de novo. The court was emphatic that directions under Section 200 of the CPC had been given and also noted that eight (8) witnesses had testified.

12. In the Ndegwa case cited, it was stated that:

“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where exigencies of circumstances, not only are likely but will defeat the end of justice, if a succeeding Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”

13. In the case of Joseph Kamau Gichuki vs. Republic (2013)the Court of Appeal stated that:

“This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused”

14. It is not a requirement of the law that a case should start afresh. What the court is obligated to do is to explain the legal provision as specified. The stated provision of law is supposed to be invoked where justice demands and both parties, the complainant and accused must be treated fairly.

15. Trial commenced on 20th May, 2015. As at 12th October, 2021, eight (8) witnesses had testified. All along the accused was represented by an advocate. Having been represented by counsel throughout, the trial was fairly and justly conducted. The accused was afforded her right under the law. Counsel who understood the case supported the option taken by her.

It has not been alleged that the record is incorrect, therefore, the procedure adopted was just and no prejudice as envisaged by Section 200 (4)of the Criminal Procedure Code (CPC) will be suffered.

16. Article 159 (2) (d) of the Constitution demands that justice shall not be delayed. This means that a case once initiated should be resolved without unreasonable delay. The Ndegwa case (Supra) was clear, Section 200 of the Criminal Procedure Code (CPC) is a provision of the law that is intended to be used sparingly in cases where circumstances are likely to defeat justice.

17. In the instant case, the learned trial magistrate acted after hearing both the applicant and her counsel, therefore, the court did not fall into error. There was no illegality whatsoever that calls for revision.

18. The upshot of the above is that directions given by the trial court having been legal, the application lacks merit. Accordingly, it is dismissed.

19. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 15TH DAY OF FEBRUARY, 2022.

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

MS. LUHAYA FOR APPLICANT

MR. KIRAGU FOR THE STATE

MUTAI - COURT ASSISTANT