Director of Public Prosecutions v Mwanzuga & 2 others (Criminal Case 83 of 2020) [2023] KEMC 270 (KLR)
The bottom line
#A Kwale magistrate ruled that accused persons cannot automatically force a trial to start over when a judge transfers — recall can be denied if they show no real prejudice.
What this practically means
#Executive summary
#Key legal issues
#Whether the accused's election under section 200(3) of the CPC to have the trial start de novo must be honoured as an absolute right
The right of recall under section 200(3) is not absolute; the succeeding magistrate must decline recall where the accused would suffer no material prejudice, applying the test in section 200(4).
The court read section 200(3) as conferring on the accused a right to demand that a witness be resummoned and reheard, coupled with a duty on the succeeding magistrate to inform the accused of that right. However, reading section 200(4) alongside it, the court held the right is subject to the material prejudice test. The complainant had testified twice and been cross-examined by all three accused; the new counsel had not shown what actual prejudice would flow from non-recall, only perceived prejudice. Recalling the elderly, disabled witness would delay a trial already 1277 days old.
Whether sparsely-used provisions like section 200 should permit continuation of a part-heard trial rather than trial de novo
Section 200 is to be used sparingly, and a succeeding magistrate may properly continue a part-heard trial where witnesses are available and no prejudice is caused, following Ndegwa v Republic.
The court adopted the Court of Appeal's guidance that section 200 is a provision to be used very sparingly and that a half-heard trial which is short, with local and available witnesses and a short passage of time, should conveniently continue rather than start afresh. Associating itself also with Ndegwa's affirmation that no rule of natural justice or common sense is sacrificed in protecting the liberty of the subject, the court balanced fair-trial rights against the rights of victims and the interest in expeditious conclusion of criminal trials.
Legal principles established
#- The right to demand that a witness be resummoned and reheard under section 200(3) of the Criminal Procedure Code is not absolute; it may be declined where no material prejudice to the accused is demonstrated, applying the test in section 200(4).
- An application to recall a witness must be grounded on actual, not perceived, prejudice, and counsel coming on record ought to demonstrate with particularity why recall is necessary.
Court orders
#- 1.The application by the accused persons to have the matter start de novo / recall and re-hear PW1 is disallowed
- 2.The matter shall proceed on the evidence already recorded, with PW1 not being recalled
- 3.The matter shall be prioritized and given an early hearing date with an aim to have it concluded before December 2023
- Jurisdiction invoked
- Criminal jurisdiction over charges of forcible detainer contrary to section 91 of the Penal Code; section 200 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Mwanzuga & 2 others (Criminal Case 83 of 2020) [2023] KEMC 270 (KLR)", Case Analysis (2023). Not stated in the judgment (criminal case, charge of forcible detainer contrary to section 91 of the Penal Code). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/270/eng@2023-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.