Republic v John Mutua Ngui & 2 others

That the availability of witnesses cannot be guaranteed. He urged the court to consider the time lapse, the matter dates back to 2021. He prays that the application be dismissed. 4. In a rejoinder the counsel for the accused stated that the accused are victims as deceased was their father. That witnesses claimed to have been assaulted by the police, this puts the evidence in question that the court is competent to hear the matter. That the application in made in good faith. 5. I have considered the application and the objection. This application has been brought under Section 200 Criminal Procedure Code. The section provides: “ 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 may— (a) 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 resummon 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 resummoned 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.” 6. In dealing with this section, the count has to consider whether the right is absolute whereby the court has to go by the option taken by the accused person. The accused has the right to decide whether to proceed with the case from where it had reached at the time the trial Judge left. The accused may also opt to have the case heard afresh by having all the witnesses who have given evidence to be recalled. Or to recall certain witnesses. The court gives directions and has to consider whether where the accused opts to have case start ‘de novo’ or to recall some witnesses it is practicable. 7. The court has to consider the lapse of time since the witnesses testified as tracing them would pose a problem and further delay the finalization of the case. This section has been discussed by the high court and the Court of Appeal. In the case of Dismas Wafula Kilinake vs Republic (2019) KECA 5 (KCR) the Court of Appeal stated that what the court has to consider is whether the conviction is vitiated by failure of the court to comply with Section 200 Criminal Procedure Code. The rationale behind Section 200 (3) is to ensure that the case is determined, as much as practicable by a Judge or Magistrate who had the opportunity of hearing and seeing witnesses as they testified so as not to lose advantage of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19555/eng@2025-10-15 2

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observing their demeanor and assessing their credibility. This was emphasized by this court in Ndegwa vs Republic (1985) KCR 535 when it stated: “ It also could be argued that the statutory and time honored formular that the trial magistrate being the best person to do so, he should himself see and hear, assess and gauge the demeanor and credibility of witnesses” It has been and will be so in other causes that will follow. In this case however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully “observed” the evidence given by the prosecution witnesses. He therefore was not in a position to assess personally credibility and demeanor of all the witnesses in the case. A fatal vacuum in this case in our opinion…. for these reasons we have stated, in our view the trial was unsatisfying” 8. The court of Appeal in Abdi Adan Mohamed vs Republic (2017) CKCR. That “ As much as it in practically possible it in mighty desirable that the trial magistrate and judge must hear the case to its conclusion and ultimately vender judgment, it is important for the final allotter to be in a position to weight the evidence taken together with his on her obscuration of the demeanor of witnesses.” 9. In the case the court of Appeal emphasized that where all the witnesses have been heard by the former judge the court may recommence the trial and resummons witnesses. In the case of Ndegwa vs Republic (supra) the court stated that “ …No rule of natural justice no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is most sacrosanct individual in the system of our legal administration.” 10. Section 200 of the Criminal Procedure Code (supra) therefore entrenches the accused person’s right to fair trial as provided today under Article 50 (1) of the Constitution which provides: “ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 11. This does not mean that the court will not consider circumstances where the witnesses cannot be traced on are confirmed dead and so the court has to determine whether it is convenient to commence the trial de novo, how far the trial has reached, availability of 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. See Joseph Kamau Gachuki versus Republic Cr No. 523/2010 cited in Nyabutu & Another Vs Republic (2009) KLR 409 12. The court can also consider Section 34 of the Criminal Procedure Code where witnesses are dead on cannot be traced. The wording of the section is wide enough to encompass situation where the witnesses who had already testified is dead, or cannot be found on is incapable of giving evidence, or is prevented by accused person from attending court or where his presence cannot be obtained without an amount of delay, or expense which in all fairness would be unreasonable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19555/eng@2025-10-15 3

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13. I have considered the application by the defence counsel. It is my view that since the counsel has challenged the evidence that the witnesses were harassed by police, it is important for this court to see them and access their demeanor and hear their evidence first hand. The prosecution has said that some witnesses many not be found. The case started in the year 2021. The accused persons have stated that the witnesses are likely to be traced. The prosecution has the benefit of relying on the evidence where applicable by invoking Section 34 Criminal Procedure Code (Subra). 14. This is a matter that touches on the rights of the accused to a fair trial. Such a right is inalienable under our Constitution. Since the accused have the right to decide how to proceed after the trial judge was transferred, this court cannot deny them that right. As the matter stands, it has gone to an advanced stage where all the prosecution witnesses have testified and one accused has given evidence. I have not had the opportunity to see and hear them when they testified. By this very fact the accused are likely to be prejudiced for these reasons and being guided by the court of Appeal decisions above cited, I find that the application has merits. 15. I therefore allow it. I older that the trial shall start ‘de novo’. The prosecution to recall all the witnesses who testified. The matter shall proceed expeditiously and on priority basis. DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19555/eng@2025-10-15 4

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