Abdi Adan Mohamed v Republic

The Court read Sections 200 and 34 together. Section 200 protects the accused's fair trial right by entitling him to demand re-summoning and re-hearing of witnesses before a succeeding magistrate. Section 34 admits earlier evidence where the witness is dead, cannot be found, is incapable, is kept away by the adverse party, or where attendance would involve unreasonable delay or expense. Those facts must be established by the prosecution; here no evidence of unavailability was ever adduced, so the adoption of prior testimony was unjustified.

The magistrate had earlier ordered, on the appellant's application, that the trial start de novo. When the prosecution later applied to proceed under Section 34, the magistrate, without hearing the appellant on that application, reversed himself and proceeded on the predecessor's record. This breached natural justice and the fair trial protections embedded in Section 200 and Article 50(1). The High Court judges erred in affirming that course without interrogating whether any basis existed for it.

The Court endorsed Ndegwa v R: the trial magistrate is best placed to assess demeanour and credibility, and Section 200 transitions should be avoided except where exigencies demand. Factors include convenience of starting de novo, the stage reached, availability and possible loss of memory of witnesses, elapsed time, and prejudice to either side. Repeated de novo hearings cause witness fatigue and delay; in this case the trial took four years due to transfers.

The appellant argued both courts wrongly relied on evidence of a key witness (Abubakar Mwanzia) who never testified, and on a flawed identification parade. Having concluded there was a mistrial warranting quashing of the conviction, the Court declined to determine these grounds, also ruling out a retrial given the nine-year history and unavailability of witnesses.