https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7274

State v Njenga (Criminal Case E001 of 2023) [2026] KEHC 7274 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7274 (KLR) Republic of Kenya In the High Court at Kapenguria Criminal Case E001 of 2023 RPV Wendoh, J May 28, 2026 Between State Prosecutor and Martin Njenga Accused Ruling 1.Martin Njenga, the accused/applicant, faces a charge of Murder contrary to Sections 203 as read with Section 204 of the Penal Code. The accused denied the offence and the case proceeded to full trial with the prosecution calling a total of six (6) witnesses. The Prosecution closed its case and the accused was called upon to defend himself. He testified on oath and he applied for adjournment to call other witnesses. 2.The applicant filed the Notice of Motion dated 23/2/2026 seeking to recall the Investigating Officer for further cross examination and that his notice to produce dated 23/2/2026 be deemed duly served upon the two. 3.The application is premised on grounds found in the body of the application and the supporting Affidavit of the applicant dated 23/2/2026. The applicant deponed that when he was charged, he was supplied with witness statements of witnesses including that of Mercy Moraa Ondiba and Joy Chepkorir who were present at the scene; that when the Investigating Officer testified on 1/4/2025, he declined to be cross examined on the said statements because he intended to call the two witnesses; that the case was adjourned twice with the prosecution seeking to summon the said witnesses but never sought summons or warrants for the said witnesses and no due diligence to calling the witnesses; that the prosecution closed its case on 30/6/2023 locking out the evidence of the two witnesses which was prejudicial to their case; that he contacted the witnesses and they agreed to come to testify, but mysteriously they became unreachable on phone, but have called him on borrowed phones but have refused to disclose their whereabouts for fear of their lives for allegedly being threatened; that it is only fair that save for Investigations Officer be recalled for further cross examination and production of the witness statements which will help in the just and determination of this case; that this court has the power to recall witnesses and prays that the court exercise that discretion. The applicant attached a notice to produce under Section 69 of the Evidence, served on the Investigations officer. 4.The application was opposed and prosecution Counsel Ms. Faith Koech filed a replying affidavit dated 9/2/2026, Counsel acknowledged that Joy Chepkorir and Mercy Moraa indeed recorded their statements in respect to this case but did not testify as witnesses; that the production of their statements by the Investigations Officer is not merited because they will not be availed for cross examination; that since it is the defence that is interested in their evidence, the applicant should call them so that their evidence can be tested on cross examination. Counsel prayed that the motion be dismissed. 5.The court directed that the application be canvassed by way of written submissions and both Counsel filed their respective submissions. 6.The applicant’s Counsel, Kiarie & Co, Advocates filed Amended submissions on 16/3/2026. It was submitted that the Investigations officer having recorded the witness statements, it does not amount to hearsay if he produces them in court; that the application is founded on Article 50(2) (b) (j) & K and Article 159, 2 (d) of the Constitution, Section 150 of the Criminal Procedure Code and Section 69 of the Evidence Act which provides that the court can summon any person for re-examination if the persons’ evidence appears to be essential to the determination of the case. 7.Counsel urged that in exercising its discretion under Section 150 of the Criminal Procedure Code, the court has to ensure that the protections afforded to the parties in the provision are adhered to. Counsel relied on the cases of Mboya -V- Republic CRA. 180/2023 (2025) KEHC 9279; Ondira & Another -V- Republic CR.App. 111/2023 (2023) KEH 124769 and Moses Ndichu Kariuki -V- Republic CR.APP. 228/2008 where courts found that failure to allow a recall of a witness would amount of a miscarriage of justice and may vitiate a trial; that in the present case, the defence Counsel was denied a chance to cross examine the Investigating Officer on the witness statements; that the Respondent has not demonstrated what prejudice will be accorded to them if the recall of the witness is allowed. 8.On her part, Counsel for the Respondent submitted that if the statements are produced by the Investigating Officer, it would be hearsay and indirect evidence; that Section 33 of Evidence Act gives instances where persons who cannot be called as witnesses may be admitted by the court i.e where the person is dead, cannot be found or the person has become incapable of giving evidence or attendee cannot be procured without an amount of delay or expense; that in the circumstances of this case, the applicant has not demonstrated any of the above; that the statements had been supplied to the applicant and if interested in their evidence, they should avail them and give room to the Respondent to cross examine later; that the alleged threats to Joy and Mercy have not been substantiated or reported to any police station for investigations; that the court already ruled that the applicant has a prima facie case based on the evidence on record and it is unprocedural and prejudicial for the Investigating officer to be cross examined during the defence. Counsel also submitted that allowing the application would amount to the court setting aside its own orders since it would amount to revisiting its decision that accused had a case to answer. 9.I have duly considered the application, the affidavits in support and reply and the rival submissions Section 146 (4) of the Evidence Act Cap 80, grants to the court discretion to recall witnesses, It provides as follows;- 146 (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.“The court may in all cases. Under Section 150 of the Criminal Procedure Code (CPC) the court is again given a wide discretion to recall witnesses. Section 150 of the Criminal Procedure Code provides this “A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case: Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness”. 10.The proviso to section 150 Criminal Procedure Code gives safeguards that the court must observe when considering the recall of a witness. The court has to ensure the protections afforded to parties in the said proviso are strictly adhered to. 11.Under Section 150 of the Criminal Procedure Code, when the court determines that the evidence of the witness to be recalled or reexamined as essential to the just resolution of the case, the court is under a duty to summon the said witness. Justice Ngugi as he then was, in Stephen Mburu Kimyu -V- Republic (2016) when considering Section 150 of the Criminal Procedure Code cited the case of Kulukena Otim -V- Republic (1963) EA 257 where the court considered Section 146 of the Ugandan Criminal Procedure Code, which is similar to Section 150 of the Criminal Procedure Code, the court said “it will be seen that the first part of the section confers a discretion but under the said part if it appears to a Judge that the evidence of a person is essential to the just decision of a case, there is a mandatory duty on the Judge (if this witness has not been called) to call him himself….. “this is important because it would appear that the second part is triggered when the court itself forms the opinion that the evidence to be called is essential to the just decision of the case. Section 150 implies that once a trial court comes to that conclusion, the duty to call that witness is triggered. This is not the situation we have here. The trial court did not make any assessment or finding that the evidence of the three (3) witnesses it permitted to be called were essential to the just determination of the case. Instead, the trial court acquiesced to the Prosecution request to call the three (3) witnesses. We must therefore conclude that the trial court acted pursuant to the first discretionary part of section 150 of the Criminal Procedure Code (CPC)”.The same decision was cited in Tom Oywa Mboge’s Case (Supra) 12.In Mboya’s Case supra the court said “19. The trial court retains the power to recall witnesses before the defence closes its case. This court, under its inherent jurisdiction and section 146 (4) of the Evidence Act, may issue orders necessary to advance justice or prevent abuse of process. 20. The evidence sought to be recalled is critical to the fair resolution of this case. As supported by Article 50(1) of the Constitution and relevant case law, justice demands that all parties be given a full and fair opportunity to present and test evidence. Refusing the recall of PW13, despite serious concerns over the accuracy of his evidence, would undermine these principles.” 13.Articles 50 of the Constitution guarantees an accused person the right to fair trial. All these provisions give the court’s discretion to be exercised judiciously to ensure that both parties to a case get a fair hearing and that justice is done to all parties. In this case, the prosecution had sought to call the two witnesses Joy and Mercy but despite several adjournments, they were not availed by the prosecution. On different occasions, the Prosecution Counsel informed the court that the said witnesses had been bonded but failed to turn up or could not be traced or had relocated. The applicant seems to have faced the same problem because he deponed that whenever the witnesses were found, they changed their phones and or call him on unknown numbers. The two witnesses were said to have been present when the offence was allegedly committed. Their witness statements had been served on the defence. When the Investigation Officer was testifying, the defence counsel wanted to cross examine him on the statements but the prosecution Counsel objected for reasons that the witnesses were going to be called but that never came to be. According to the applicant the evidence of the two witnesses was in his favour. 14.On the submission by the Respondent that the applicant did not prove alleged threats to Joy and Mercy, indeed no attempt was made to prove the said alleged threats to the two. However, this court takes cognizance of the fact of the challenges that the prosecution had in trying to trace the said witnesses were the same as those the applicant said he faced. It seems that the witnesses, for reasons known to them, did not want to come to court to testify. 15.It is the duty of the Prosecution to avail all relevant witnesses, whether their evidence is favourable to their case or may be adverse to it. The relevant evidence is necessary to assist the court in adjudicating the case fairly. In my view, the evidence of the two witnesses is key to the just disposal of this case. It will not amount to hearsay because the Investigating Officer can only produce the witness statements because he was the author, and the Investigations Officer will be cross examined on them and the Prosecution will have an opportunity to reexamine him. 16.The Respondents Counsel argued that the court having closed the prosecution case, the witnesses cannot be recalled. However, Section 150 of the Criminal Procedure Code is clear, a witness may be called at any stage of the trial which means before close of defence case. 17.Lastly, I find that the Respondent has not demonstrated that they will suffer any prejudice if the Investigation Officer is recalled. After all, the witnesses whose statements he will produce were supposed to be witnesses for the prosecution. This court is guided by the cited cases above and the law. 18.The upshot is that the application dated 23/2/2026 is allowed. The applicant is hereby allowed to recall the Investigating Officer (PW6) for cross examination and notice to produce dated 23/2/2026 be deemed as duly served upon the Investigations Officer as prayed. RULING DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 28TH DAY OF MAY, 2026.HON. R. WENDOH.JUDGE.Judgment read in the presence of:-Prosecution Counsel – Ms. KoechMr. Ndarwa for Accused/ApplicantApplicant/ Accused - presentJuma/Hellen-Court Assistants