[2022] KEHC 1420 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO.E046 OF 2021

STATE ............................................................................................................REPUBLIC

V E R S U S

TITUS KIPCHIRCHIR KURUI...................................................................ACCUSED

R U L I N G

1. The accused, Titus Kipchirchir Kurui, has been charged with one Count of Murder contrary to Section 203 as read with Section 204of the Penal Code.

The particulars of the offence are that:-

“On the 30th day of May 2021 at around 1900hrs at Kabil Kitindo Bar area, in Embakasi Sub-county, within Nairobi County murdered Charles Maina Karugu”.

2. On 10th February, 2022, the Applicant through his advocate, made an oral application to have PW1, PW2 and PW3 recalled for further cross examination.

3. Ms. Gikonyo, the learned prosecution counsel opposed the application on the ground that the defence had been supplied with all the material the prosecution intended to rely on and had had ample time to prepare for their case. That further, the provisions of Sections 145-6 of the Evidence Act had been complied with during the hearing of the witnesses sought to be recalled by supplying their statements from IPOA. Ms. Gikonyo also stated that the Investigating Officer had reached out to the witnesses but they were not willing to come back to court as they will be subjected to undue anxiety and hardship if they are to go through the same process once again. That also PW1 and PW3 have indicated that they are in new employment and it would be hard for them to get permission to attend court again. She also stated that the victim’s lawyer had indicated that recall of the witnesses would cause anxiety and hardship on the family since they would have to relieve the experience again. She thus urged the court to protect the witnesses from the ordeal of repeatedly appearing before court. Further, the application should not be used as a lacuna of filling gaps in the defence case as it will be prejudicial to the prosecution’s case.

4. Mr. Ngugi, counsel for the victim’s family also opposed the application. He stated that the application is res judicata since the court had already made its finding on the same issues on 9th December 2021. He also stated that the witnesses have expressed fear and do not feel safe in testifying again being that the applicant is out on bail. Further, the court stood PW4 down to enable the defence address any issues they had with his evidence. Finally, he was of the opinion that the application was a delay tactic by the defence.

5. In response, Mr. Amendi stated that the Ruling on the issue of IPOA was not disputed. His contention was that the statements by IPOA were not supplied to the defence in time hence the Applicant was not accorded ample time to prepare for his defence. He stated that the objection for recall of witnesses is laid down in the following principles which include; that the witnesses cannot be found, that the recall would incur a lot of expenses to secure the attendance of the witnesses and that it would be time consuming to secure the witnesses. Therefore, he was of the view that Mr. Ngugi had not demonstrated the above three considerations for recall. Further, recall of witnesses is provided for in law under Section 151 of the Criminal Procedure Code; thus the witnesses ought to be recalled in the interest of justice.

ANALYSIS AND DETERMINATION

6. I have considered the oral application by defense counsel to have three witnesses being PW1, PW2 and PW3 recalled for further cross-examination. The operative law that provides for recall of witnesses is consisted in Section 150of the Criminal Procedure Code which provides as follows:

“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.”

7. The above Section speaks of its self and conceptualizes that a trial court has the discretion to 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 any person already examined. The Section, and subject to the proviso attached to it, allows the trial court to recall for cross-examination a witness whose evidence is essential to the just determination of the case. Therefore, it would be a travesty to justice for one to hold that the accused person had all the opportunity at the hearing of the case and an innocent observer would criticize the accused for lethargic behavior.

8. In view of the above observation, each case has to be considered on basis of its facts as opposed to proceeding from a point of speculation. In addition, it goes without saying that Section 150 of the Evidence Act also allows witnesses to be recalled and to be cross-examined by the prosecution or the defence counsel. In view of this, I will consider some guiding principles laid by the court on the same. To begin with, Section 146(4) of the Evidence Act provides a leeway for recall of witness by Parties. It reads as follows;

“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.”

9. In the case of Republic –vs- Wilson Chelelgo Cheponin [2019]eKLR, whose finding when it expressed itself as follows and agree with is:-

“The primary consideration on an order or application for recall by the Court suo motu, or upon application by the Parties, is that the immutable and unlimitable Constitutional Right to fair trial guaranteed under Article 25 (c) of the Construction is observed. Of significance to upholding the right to fair trial in this respect is the right to “challenge evidence” by cross-examination under Article 50 (2) (k) and the right “to have adequate time and facility to prepare a defence,” under Article 50 (2) (c)”.

10. In the Kenyan Jurisprudence, the right to fair trial is placed at a much higher pedestal and it includes the right by an accused person to challenge the evidence presented against him or her. The court being a custodian of the law, should however ensure the constitutional safeguards are upheld all the time and jealously protected so that the accused is accorded true investigations and fairness in compliance with the basic rule of law. That is a fundamental canon of our criminal jurisprudence and quite in conformity with the constitutional mandate contained under Article 50 of the Constitution of Kenya, 2010.

11. In the same alignment, I do appreciate the Supreme Court of India’s case ofRattiram -vs- State of M.P, where a three-judge bench held as follows:-

“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism.”

And again:-

“Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused….."

12. With the above in mind, I now proceed to consider the facts of the present case alongside the principles postulated above. On 10th February, 2022, this court delivered a Ruling to the effect that the evidence presented to this court may proceed with the investigations and report made by IPOA. This was an issue highly contested and opposed by the defence counsel but the court saw no harm that would be occasion on the accused if the Report was relied on. Upon the delivery of that ruling, the counsel for the accused person applied to recall for further cross-examination of PW1,2 & 3 on basis that their evidence was much relied on the report made by IPOA which had all along been a subject of controversy.

13. Indeed, looking through the court record, it is confirmed that the three witnesses testified on 1st December, 2021, which was way before the court had pronounced itself on the probative value of the investigations and report made by IPOA. In my view, it is therefore reasonable to expect that the Defence counsel after raising the objection, had not cross-examined the three witnesses fully with regard to or in line with what they testified in relation with the IPOA report. Consequently, I am not persuaded that the defence counsel in applying to further cross-examine the three witnesses is applying a delay tactic to stall the determination of the matter.

14. Suggestively from the Kenyan jurisprudence, an application to recall witnessfor cross-examination can only be denied when the prosecution proves to the satisfaction of the court that; the request to have the witness re-called is based on ulterior motive and meant to be a delay tactic; that the witness has travelled out of the country and it would lead to unnecessary travelling expenses; and lastly, in circumstances where the witness cannot completely be traced.

15. In the present case, the prosecution has not laid down any of those grounds but has submitted that the witnesses will be prejudiced by having to undergo the process of cross-examination once again and they are even unlikely to get permission from their workstation. On the other hand, counsel-watching brief for the victim, submitted that the issue at hand is res-judicata although no further explanation to that regard was offered. I have perused the record and find that this court has not been addressed on the issue of whether PW1, PW2, & PW3 could be recalled for further cross-examination hence that same cannot be said to be resjudicata.

16. In any event, having weighed the Accused persons right to a fair hearing alongside the submission tendered by prosecution, I am of the view thatfailure to have PW1, PW2 and PW3 recalled for purposes of further cross-examination with relation to the IPOA report which had been pending a Ruling to determine its probative value, would cause prejudice to the accused person. I need not to reiterate that the accused person’s right to cross-examination is the linchpin of the concept of a fair trial, in that, it has a bearing on the principle of the equality of hearing and the equality of arms, without which a trial cannot be said to have been conducted fairly. Therefore, the accused person cannot be said to have been treated fairly or accorded equality of hearing if he is denied the right to cross-examine the witnesses in relation with a report which was a point of controversy at the moment they had testified.

17. It is worth noting that the accused is facing a serious charge and if found guilty he might be sentenced to suffer death. He should therefore be accorded all the available facilitation to enable him defend himself and have the evidence presented against him tested for its veracity.

18. In the end, the application to have PW1, PW2 and PW3 recalled for purpose of further cross-examination is hereby allowed but only limited to the issues touching on the IPOA report and the investigations thereon.

It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF MARCH,2022.

D. O. CHEPKWONY

JUDGE

IN THE PRESENCE OF:

M/S GIKONYO COUNSEL FOR THE STATE

M/S KHAMALA COUNSEL FOR THE ACCUSED

COURT ASSISTANT - JACKLINE