Republic v Isaack Omwenga & 7 others

4. The Prosecutor in objecting to the Accused’s request for a de novo hearing stated that the witness who had already testified was a protected witness who was under witness protection but that had already left and was no longer under protection. Hence that the witness may not be available. 5. Further that the proceedings of the hearing, as well as the notes recorded at the crime scene by the previous Judge, were on the court file. Also that the case is three years old and the said witness testified for q whole two days and was sufficiently cross-examined by all the Defence counsel. That none of whom had applied to recall the witness. He concluded by saying that no good reasons had been given by the Accused, as to why the case should start afresh. Analysis and Determination 6. I have considered the wish of the seven Accused persons, as well as the Prosecutor’s opposition. I have also given careful attention to the reasons advanced to support the two rival positions. Section 200 of the Criminal Procedure Code allows the Accused to elect whether a partly-heard case that is now before a different Judge, should proceed from where it had reached, or start de novo. 7. It need be clarified, that, that election is neither binding on the court; nor does it confer upon the Accused the absolute liberty to dictate to the court, how the case should proceed. In determining whether the case should start de novo, or proceed from where it had reached, the court will consider among other things not only the opinion/election of the Accused and the narrow prism of the rights of the Accused, but also practicability; the interest of the complainant or victim; as well as the wider interests of justice generally. 8. Except where it is reasonably impracticable or is against the interest of justice or is likely to result in miscarriage of justice, where the case has proceeded substantially as in this case, the court will be more inclined to directing that the case proceeds from where it had reached. The factors to be considered in whether to start the case de novo or to proceed from where the case had reached include the following: a. The extent to which the case had proceeded; b. The duration case had taken, from inception, to where it had reached; c. The number of witnesses that had testified, vis a vis the number of witnesses that have remained; d. The availability of the remaining witnesses as well as the likelihood of procuring them without delay; e. The type of witnesses that have already testified, e.g if any of them were under witness protection; f. The comparative demonstrable prejudice the Accused is likely to suffer, if the case were to proceed from where it had reached; and g. Where it is reasonable, the balance of convenience. 9. In my considered view, starting de novo should be an exception rather than the norm. It should be opted for, in the most compelling and exceptional circumstances. But not as a matter of course, or mere option. It must be justified by reasonable and legally sufficient grounds. 10. As the court is a master of its processes, it could not have been the intention of the law-makers that Section 200 of the Criminal Procedure Code arrogate to the Accused the right to take over and drive https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6936/eng@2026-05-14 2

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proceedings. Especially in the post-2010 Constitutional dispensation, where the rights of victims have been mainstreamed alongside those of the Accused. 11. I find no merit or justification in the reasons the Accused have advanced for their request for this case to start de novo. On the other hand I find the reasons advanced by the Prosecution, to be reasonable and calling for this case to proceeds from where it had reached. 12. The misgivings of Accused, as my being a new Judge in this case, are unfounded, as all the previous proceedings as well as the notes then trial Judge recorded at the locus in quo, are on the file. I have already read them acquainted myself appropriately. Judicial officers will always act diligently and prudently. Should need arise for me to visit the crime scene, that will be considered at that time. 13. For the aforegoing reasons, the request for this case to start de novo, is hereby declined. Hence it is hereby directed that this case proceeds from where it had reached. DATED AND DELIVERED AT KISII ON THIS 14TH DAY OF MAY 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6936/eng@2026-05-14 3

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