https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8740

Otumba v Republic (Criminal Appeal E034 of 2026) [2026] KEHC 8740 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8740 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E034 of 2026 DR Kavedza, J June 23, 2026 Between Samwel Bryan Yongo Otumba Appellant and Republic Respondent Ruling 1.This appeal arises from the ruling of the Chief Magistrate's Court at Kibera delivered on 2nd April 2026 dismissing the Appellant's Notice of Motion dated 20th February 2026. By that application, the Appellant sought an order that the evidence of the complainant, Jacob Juma, be expunged from the record on the basis that the complainant passed away before the defence was afforded an opportunity to cross-examine him. The Appellant maintained before the trial court that the continued retention of the testimony on the record was prejudicial to his defence and infringed his constitutional right to a fair trial as guaranteed under Article 50 of the Constitution. 2.Dissatisfied with the determination of the trial court declining to grant the orders sought, the Appellant lodged the present appeal challenging the entirety of the ruling and inviting this Court to interfere with the exercise of discretion by the learned trial magistrate. 3.The Appellant contends that the learned trial magistrate erred in holding that the application was premature and in failing to determine whether the evidence of the deceased complainant was admissible under section 33 of the Evidence Act. It is the Appellant's case that the issue placed before the trial court raised both constitutional and statutory questions which required immediate determination. 4.According to the Appellant, the trial court ought to have considered whether the evidence of the deceased complainant met the threshold established under the Evidence Act and whether its continued retention on the record was consistent with the right to a fair trial. 5.The Respondent, on the other hand, maintains that the appeal is devoid of merit and that the trial court properly exercised its discretion. The Respondent further contends that the application before the subordinate court was misconceived, that section 33 of the Evidence Act was inapplicable in the circumstances of the case, and that no infringement of the Appellant's constitutional rights had been demonstrated to warrant the intervention of the court. 6.I have considered the impugned ruling, the grounds of appeal and the parties' submissions. I have also considered the proceedings before the trial court and the respective positions taken by the parties both in the court below and before this Court. The duty of a first appellate court in such circumstances is to re-evaluate the material placed before it and determine whether the decision of the subordinate court was founded on proper legal principles and supported by the record. 7.The issue falling for determination in this appeal is whether the learned trial magistrate erred in declining to expunge the evidence of the deceased complainant at the stage the application was made and whether such refusal warrants interference by this Court in the exercise of its appellate jurisdiction. 8.The foundation of the Appellant's case is section 33 of the Evidence Act. The section provides, in material part, that:“Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears unreasonable, are themselves admissible in the following cases..." 9.The section then sets out the circumstances under which such statements may be admitted. 10.The difficulty with the Appellant's argument is that the evidence in question was not a statement sought to be introduced through another witness after the death of the maker. The complainant personally appeared before the trial court and gave oral evidence on oath in open court. His testimony was received as evidence by the trial court and forms part of the record. The issue raised by the Appellant therefore concerns the evidential weight and probative value to be attached to that testimony in light of the fact that cross-examination was not undertaken before the witness's death. 11.That question is one that falls squarely within the province of the trial court. It is the trial court that hears the evidence, evaluates its credibility, considers the circumstances under which it was given and ultimately determines the weight to be attached to it. Whether the absence of cross-examination renders the evidence unreliable, wholly or partially incapable of supporting a conviction, or of no evidential value at all, are matters that can only properly be assessed in the context of the entire body of evidence adduced during the trial. 12.The learned magistrate correctly appreciated that the application invited the court to make a premature determination on the evidential value of testimony already on record. The court was entitled to defer that assessment to the appropriate stage of the proceedings. Such a course did not amount to a violation of the Appellant's constitutional rights. 13.Further, the supervisory jurisdiction of the High Court is intended to ensure legality, propriety and regularity of proceedings before subordinate courts. It is not a mechanism through which the High Court micromanages the conduct of ongoing criminal proceedings or dictates how a trial court should evaluate evidence at every interlocutory stage. To intervene in the manner urged by the Appellant would amount to an unwarranted intrusion into the trial court's mandate. 14.I find no error of law, fact or principle in the ruling delivered on 2nd April 2026. The learned magistrate properly exercised her discretion and correctly declined to expunge the evidence at that stage of the proceedings. The grounds of appeal are therefore unmeritorious. 15.Accordingly, the appeal is dismissed in its entirety. The proceedings before the trial court shall continue to hearing and determination in accordance with the law.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JUNE 2026..........................D. KAVEDZAJUDGEIn the presence of:Appellant PresentMs. Otiya for the RespondentKarimi Court Assistant