Republic v Nyakina & another (Criminal Case 19 of 2019) [2023] KEHC 1842 (KLR) (9 March 2023) (Ruling)
Neutral citation:
[2023] KEHC 1842 (KLR)
Republic of Kenya
Criminal Case 19 of 2019
WA Okwany, J
March 9, 2023
Between
Republic
Prosecutor
and
James Ogwagwa Nyakina
1st Accused
Jackson Kirui Kipngeno
2nd Accused
Ruling
1.This matter was previously heard by Maina, J and Ochieng’, J (as he then was) when at least 12 witnesses testified.
2.When the matter came up for hearing before me on October 4, 2022, Mr Majale, Learned Counsel for the State sought directions, pursuant to Section 200 of the Criminal Procedure Code (CPC) that the matter proceeds from where it had reached while arguing that he was left with only 2 more witnesses to call. It was Mr Majale’s submission that securing the court attendance of all the 12 witnesses all over again will not be practically possible.
3.Mr Kaba, Learned Counsel for the accused persons, opposed the application by the prosecution on the basis that the charge of Murder that the accused persons are facing is serious and carries a heavy sentence such that this court should start the hearing de novo in order to have the benefit of observing the demeanor of the witnesses. It was submitted that the issue of the availability of the witnesses cannot override the rights of the accused persons as prescribed by the law.
4.After considering the submissions by Counsel, this court directed that the proceedings so far taken in the case be typed before a determination can be made on whether or not the case should proceed de novo.
5.I have carefully considered the submissions by learned Counsel together with the typed proceedings on the court record.
6.The issue before me concerns the exercise of discretion under Section 200 (3) of the Criminal Procedure Code which stipulates as follows: -
7.Both the High Court and the Court of Appeal have pronounced themselves on the import of the above provision. In Ndegwa vs Republic [1985] eKLR, the Court of Appeal held:-
8.In Abdi Adan Mohamed vs Republic [2017] eKLR, the Court of Appeal held:-
9.In Joseph Kamau Gichuki vs Republic NRB [2013] eKLR, it was held: -
10.In the present case, the trial commenced on September 17, 2019 when plea was taken and thereafter, the prosecution availed the testimony of a total of 12 witnesses. As I have already noted in this ruling, the case has been heard by 2 judges and I am therefore the third judge handling it. It is also instructive to note that the prosecution indicated that they only have 2 witnesses to go before they can close their case.
11.Having regard to the totality of the circumstance surrounding this case, I am of the view that while it is desirable that a criminal trial be started and concluded by the same judge, the reality before our courts is that the same may not be achievable as a trial judge may be transferred, retire, be promoted to a higher court or leave service for one reason or the other. In the instant case, this court is aware that Maina J who initially heard the case was transferred while Ochieng’ J (as he then was) who subsequently took it over was promoted to the Court of Appeal. Section 200 of the CPC was enacted to take care of the reality of the possibility of such changes occurring in the course of a trial.
12.As I have already noted in this ruling, the trial has advanced with a total of 12 witnesses and can be said to be at the tail end having taken well over 3 years. It is reported that only 2 witnesses are remaining.
13.Guided by the dictum in the above cited cases, I find that the provisions of Section 200 of the CPC does not give an automatic license to always start a case de novo every time a trial court changes as the Court of Appeal has set out circumstances to consider before starting a case afresh. The circumstances include; whether it is convenient to commence the trial de novo, how far the trial has reached, the availability of witnesses who have already testified, possible loss of memory by the witnesses, the time that has lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.
14.Considering all the factors of this case and especially the age of the case, I find that it will not serve the interest of justice to start the case de novo as there is the likelihood of the unavailability of witnesses or their fatigue owing to the lapse of time. My further finding is that while it is desirable for a court to observe the demeanor of witness, such observation cannot over shadow the court’s constitutional obligation to dispense justice expeditiously in the face of the apprehension by the prosecution that they may not be able to secure the attendance of all the witnesses should the case begin afresh.
15.In sum, I am not persuaded that this is a proper case for the granting of an order that the case starts de novo. Consequently, I direct that the trial proceeds from where it had reached.
16.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA ON THIS 9TH DAY OF MARCH 2023.W. A. OKWANYJUDGE