Kilonzo; Director of Public Prosecutions (Respondent) (Criminal Case E035 of 2021) [2022] KEMC 23 (KLR)
The bottom line
#A Kenyan court refused to let a criminal accused recall the child complainant for more cross-examination because no specific reason was given.
What this practically means
#Executive summary
#Key legal issues
#Discretion to recall a witness under section 146(4) of the Evidence Act
The power is discretionary ('may') and must be exercised judiciously on a case-by-case basis; the applicant must show specific, substantive grounds for recall.
Section 146(4) of the Evidence Act confers a discretionary power permitting recall of a witness for further examination or cross-examination. Drawing on Lesiit J in Republic v Fredrick Ole Leliman, the court held the power must be dictated by exigency, fair play and good sense, exercised judiciously, not capriciously or arbitrarily, and only for strong and valid reasons. Nagillah J and Meoli J confirm that a vague desire to 'clarify' is insufficient.
Whether the accused's application satisfied the required threshold
The application failed; the accused had already cross-examined PW1 at length, having elected to proceed unrepresented, and demonstrated nothing specific remaining from PW1; the court found ulterior motives given witness-protection concerns.
The accused, after two advocate changes, chose to proceed unrepresented and cross-examined the complainant to his satisfaction. New counsel's general remark that 'a few questions' remained fell far short of the specific grounding required. Combined with the DPP's fears about the integrity of the minor complainant's evidence after release from witness protection, the court found the application had ulterior motives and dismissed it.
Right to legal representation versus protection of the complainant
Article 50(2)(g) confers a right to choose an advocate, but the choice made binds the accused and the right cannot be abused; the court owes a duty to protect both accused and complainant.
The court affirmed that representation is a constitutional right under Article 50(2)(g), but a trial is vitiated only if the denial of that right is attributable to the court, and the accused's choice binds him. The court must balance this against the complainant's rights under Article 50(9) and the Victim Protection Act, 2014. The accused, a composed and strategic cross-examiner with education and police experience, was not prejudiced.
Whether the accused is a trained investigator (DPP submission)
The court declined to find the accused was a trained investigator, as not proven, but noted his education, research and police background meant he was not prejudiced by self-representation.
The DPP inferred from the accused being a police officer that he was a trained investigator. The court rejected that inference as unproven, holding it is not a proven fact that all police officers are trained investigators. Nevertheless, his high school education, KEMRI research work and police service meant he could not be said to be of wanting intelligence or prejudiced, echoing Lord Denning in Pett vs Greyhound Racing Association and Mativo J's finding in Joseph Ndungu Kagiri.
Legal principles established
#- The power to recall a witness under section 146(4) of the Evidence Act is discretionary and must be exercised judiciously, for strong and valid reasons, guided by the exigency of the situation, fair play, good sense and the ends of justice
- A party seeking recall of a witness must lay a sufficient, specific ground; a general desire to ask 'a few questions' does not suffice
- A court should not allow the right to legal representation to be used to abuse the constitutional rights of a complainant protected under Article 50(9) and the Victim Protection Act, 2014
Court orders
#- 1.The application for recall of PW1 is disallowed
- 2.Ruling dated, signed and delivered in open court at Kwale on 5th May 2022
- Jurisdiction invoked
- Criminal trial jurisdiction under the Criminal Procedure Code; application brought under section 146(4) of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilonzo; Director of Public Prosecutions (Respondent) (Criminal Case E035 of 2021) [2022] KEMC 23 (KLR)", Case Analysis (2022). Criminal Case No E035 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/23/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.