Republic v Orenge & another (Criminal Case E061 of 2023) [2026] KEHC 8952 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8952 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISII CRIMINAL CASE E061 OF 2023 SIFUNA NIXON, J JUNE 17, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND JOSHUA KARANJA ORENGE ............................................................. 1ST ACCUSED MARY MONCHARI ORENGE ............................................................ 2ND ACCUSED RULING 1. This case was partly-heard with five prosecution witnesses having testified. The hearing proceeded before the then trial Judge Odera J who has since been transferred to another station. When it came up before me for hearing on 10th June 2026, I directed that directions be taken under Section 200 of the Criminal Procedure Code (Cap 75 Laws of Kenya) as to whether the case should start de novo, or proceed from where it had reached. 2. When the question was put to election, the 1st Accused stated that the cross-examination of the prosecution witnesses was conducted by his Advocate. Hence that the case should start de novo, so that he can take over the conduct of the case. The 2nd on her part stated that it should proceed from where it had reached. 3. The 1st Accused’s electing that the case start afresh, was opposed by the Prosecution Counsel. Who in opposing the same, stated that first, the reason given by the Accused, is not sufficient. That five prosecution witnesses having testified, the case has proceeded substantially. As that the prosecution has only two witnesses remaining. Further that it may not be easy to procure those five witnesses. That starting all over again as preferred by the 1st Accused, is not prudent use of resources. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8952/eng@2026-06-17 1
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Analysis and Determination 4. I have considered the divergent stands taken by the two Accused persons. I have also considered the stand taken by the Prosecutor. As well as the reasons put forth by them. Section 200 of the Criminal Procedure Code allows an 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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 proceedings. Especially in the post-2010 Constitutional dispensation, where the rights of victims have been mainstreamed alongside those of the Accused. 10. For the aforegoing reasons, the 1st Accused’s 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 DAY OF 17TH JUNE 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8952/eng@2026-06-17 2
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