Republic v Evans Karani Wanyamu

Notice of Motion application dated 9th December, 2024 which is supported by his Affidavit sworn on the same date. The Application seeks the following orders: a. That the Honourable Court be pleased to recall all the prosecution’s witnesses who had testified to testify again. b. That in alternative to prayer No.(a) above, the Honourable Court be pleased to recall all prosecution witnesses who had testified for cross examination again. c. That the costs of the application be provided for. 6. The Accused person indicated to court that the case proceeded for trial and several prosecution witnesses gave their evidence before a Judge who is no longer in Kiambu Law courts. He argues that the current Judge will not have an opportunity to record their evidence and observe their demeanor. He also holds that his family and the victim’s family had agreed to settle the matter out of court but the office of prosecution rejected the same. The accused has concluded that it would only be fair that the trial begins de novo so that the prosecution witnesses can testify afresh. He further argues that at the time he was being represented by a pro bono Counsel and was not able to properly instruct the Counsel to engage him before and during trial. According to the accused/Applicant he is now out on bond and has a self-appointed Counsel and is thus able to get proper legal advice and it would be in the interest of justice that he application be allowed since no prejudice will occasion any party. 7. The Prosecution Counsel opposed the application through one of the prosecutors, M/S Jenifer Ndeda sworn on 7th March, 2025. The Prosecution argues that the application by the accused person to have the case start de novo is frivolous, vexatious, bad in law meant to mislead and waste the court’s time. The Prosecution holds that the accused person was arrested on 16th April, 2021 during trial he was represented by his state appointed Counsel Mr Njehu. 8. The prosecution holds that five of its witnesses being Maureen Anyango Okeyo (PW1), Gitonga Njogu (PW2), Robert Nyaga Thairu (PW3), Patrick Mwangi Mukami (PW4) and Anthony Mathenge Mwai (PW5) testified on diverse dates when both the accused person and his Counsel were present and the proceedings were undertaken in a language that the accused person and all witnesses understood and if at all the accused person had an issue he ought to have raised the same at the time. 9. The Prosecution holds that the case has taken more than four years which is a long time for the victim’s family. Further all the 5 witnesses who testified were traumatized by recounting the events that led to the death of the loved one and discovery of the body of the deceased by the road side. 10. The Prosecution therefore argues that starting the matter de novo will defeat the ends of justice and will delay the matter further. That the accused does not have an absolute right to have the matter tried afresh under Section 200 1(b) as read with Section 201 (2) of the Criminal Procedure Code. The Prosecution further argues that the accused does not have a firm, convincing or believable grounds to warrant the matter to start afresh and owing to the rule of practice that litigation must come to an end and therefore the matter should be heard to its logical conclusion. 11. The Prosecution holds that it is open to enter into a plea bargain agreement but not to withdraw the case as proposed by the accused person. It argues that since the court is a court of record, all proceedings and testimonies of all the witnesses are available for scrutiny and perusal and therefore oppose the application by the accused person for the case to start denovo. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19321/eng@2025-10-22 2

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Analysis and Determination 12. The court notes as the accused person has admitted that when prosecution case commenced on diverse dates, the accused person was in court together with his advocate and he did not raise any concerns to court. 13. The court further notes that the Directions of the provisions of Section 200 of the Civil Procedure Code provides as follows:[200] (1) 14. Subject to subsection (3), where a Magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding Magistrate maya) deliver a Judgment that has been written and signed but not delivered by his predecessor; or b) where Judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial. (2) Where a Magistrate who has delivered Judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a Magistrate who has and exercises that jurisdiction, the succeeding Magistrate may pass sentence or make any order that he could have made if he had delivered Judgment. (3) Where a succeeding Magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding Magistrate shall inform the accused person of that right. (4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.” The court complied with the provisions of Section 200 (3) of the CPC and informed the accused of his right. This was the position of the Court of Appeal in the case of John Bell Kinengeni v Republic [2015] eKLR, held that:“ the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and failure to comply with that requirement would in an appropriate case render the trial a nullity as Section 200(3) requires in a mandatory tone that the succeeding Magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding Magistrate. 15. Initially, on 27th March, 2023, when the court issued directions under Section 200, the Accused person elected to have the matter proceed from where it had reached. The Accused much later sought to have the case start de novo which culminated into the present application. Although the Accused has a right to demand for a case to start denovo, the court agrees with the prosecution counsel that this right of the accused person is not an absolute right as the court has to consider other factors based on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19321/eng@2025-10-22 3

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circumstances of the case. The Court of Appeal in the case of Joseph Kamau Gichuki v Republic [2013] eKLR held that the court should consider how far the trial had proceeded, availability of witnesses who had already testified, time that had lapsed since commencement of trial and the prejudice likely to be suffered by either parties. The Court of Appeal stated that:“ This Court has previously held that Section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding Magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking Section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.” 16. The court note that the provision of the law is not in mandatory terms that the case must start denovo, what is mandatory is that the accused is informed of his right to demand either the case to start denovo or to have a witness recalled. See Joseph Kamara Maro v Republic [2014] eKLR where the Court of Appeal held that:“ …To this extent we are in agreement with the learned Judges of the High Court that “this provision does not oblige the succeeding magistrate to start de novo” but what is mandatory is to inform an accused of his right under section 200(3) of the Criminal Procedure Code.” emphasis added. 17. In this case, it is evident that although the accused was charged with the offence herein in the year 2018, the hearing of the prosecution’s case took off whereby five (5) witnesses have already testified and the prosecution is left with eleven (11) more witnesses to call. It is the court’s view that starting the case afresh would be prejudicial as this will only cause a further delay in the case owing to the fact that it has been pending since 2018 which is contrary to the provisions of Article 50 (2) of the Constitution, which is on the right to a fair hearing, on the right:(e) 18. “to have the trial begin and conclude without unreasonable delay.” Since the accused has not given cogent reasons to warrant the matter to start afresh, the court directs that the matter to proceed from where it had reached. As earlier stated, five (5) witnesses have already testified and the prosecution is left with eleven (11) more witnesses to call. The following directions issue:a. Hearing on 23rd March, 2026. b. Summons to issue upon the remaining witnesses. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 22 ND DAY OF OCTOBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Gacharia counsel for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19321/eng@2025-10-22 4

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Mr. Ruiru counsel for the accused Accused present Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19321/eng@2025-10-22 5

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