Ahmed Chege Gikera & 1 other v Republic

3. c. That in the now clear absence of No. 8xxx5 CPL Irene Wambui, that this Honourable Court discharges and/or acquits the accused persons the Applicants herein. d. That pending the hearing and determination of this application, there be a stay of any further proceedings in Milimani Chief Magistrate's Court at Nairobi Criminal Case No. 1577 of 2014: Republic -vs- Ahmed Chege Gikera & Henry Wainaina Kihoro. e. That any further orders do issue as this Honourable Court deems fit. The Notice of Motion was premised on the following grounds:1) That the accused persons the Applicants herein are charged with following counts:Count I:- Giving false information to a person employed in public service contrary to Section 129(a) of the Penal Code. 1. Ahmed Chege Gikera 2. Henry Wainiana Kihoro: On the 31st day of January, 2014 at Ruiru town within Kiambu County, jointly gave information to No, 8xxx5 CPL Irene Wambui, a person employed in the public service, as a police officer that John Maina Mburu the chairman of Githunguri Constituency Ranching Company had misappropriated Kshs. 360,000,000/- which was paid by the world Bank in relation to LR No. Ruiru Kiu Block 2(Githunguri) 2297 for the sewerage construction, information you knew or believed to be false, intending thereby to cause the said No. 8xxx5 CPL Irene Wambui to investigate which she ought not to have done if the true state of facts respecting which such information was given was known to her." 2) That the crux of the prosecution case is that the accused persons the Applicants allegedly gave false information to person employed in public service contrary to section 129(a). 3) That the prosecution required evidence of the Investigating Officer a one Irene Wambui who failed to testify as she was not summoned to court neither was the arresting officer summoned to court to testify on whether the complainant was given false information. 4) That no other officer can testify on the issue raised to have been between the accused persons the Applicants herein and the said No. 8xxx5 CPL Irene Wambui. 5) That in the absence of No. 8xxx5 CPL Irene Wambui, the prosecution cannot sustain any charge against the accused person the Applicants herein. 6) That the orders of the court directing that another officer to testify on behalf of Irene Wambui are unfair, and oppressive, the court seems not to have considered the charges facing the accused persons the Applicants. 7) That for the above unanswered questions the accused persons the Applicants have every reason to believe that they are being framed and humbly prays that this Honourable Court reviews https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 2

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and/or issue an order to call for the lower court file for perusal/examination to satisfy itself as to the correctness, legality or propriety of order pronounced by the trial court. 8) 4. That in the premises, it is in the interest of justice that the orders sought herein be granted to forestall travesty of justice. The application was supported by the supporting affidavit of one Ahmed Chege Gikera who deposed as follows;1. that he is an adult male of sound mind and the 1st Applicant herein, and well conversant with the facts of this matter and with authorization form the 2nd Applicant herein, hence competent to swear this affidavit. 2. that he is aware that himself and that the 2nd Applicants were jointly charged with following counts:Count 1:- Giving false information to a person employed in public service contrary to Section 129(a) of the Penal Code. 1. Ahmed Chege Gikera 2. Henry Wainiana Kihoro: On the 31st day of January, 2014 at Ruiru town within Kiambu County, jointly gave information to No. 8xxx5 CPL Irene Wambui, a person employed in the public service, as a police officer that John Maina Mburu the chairman of Githunguri Constituency Ranching Company had misappropriated Kshs. 360,000,000/- which was paid by the world Bank in relation to LR No. Ruiru Kiu Block 2(Githunguri) 2297 for the sewerage construction, information you knew or believed to be false, intending thereby to cause the said No. 8xxx5 CPL Irene Wambui to investigate which she ought not to have done if the true state of facts respecting which such information was given was known to her." 3. That he is informed by his advocates on record and which information he believes to be true that the crux of the prosecution case is that they allegedly gave false information to a person employed in public service contrary to section 129(a). 4. hat the prosecution required evidence of the Investigating Officer a one Irene Wambui who failed to testify as she was not summoned to court neither was the arresting officer summoned to court to testify on whether the complainant was given false information. 5. That no other officer can testify on the issue raised by the prosecution since all that is said to have happened was between him, his co-accused and the said No. 8xxx5 CPL Irene Wambui. 6. That in the absence of No. 8xxx5 CPL Irene Wambui, the prosecution cannot sustain any charge against the accused. 7. That the orders of the court directing that another officer to testify on behalf of Irene Wambui are unfair, and oppressive, the court seems not to have considered the charges facing the me and my co-accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 3

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5. 8. That for the above unanswered questions the accused persons the Applicants herein have every reason to believe that they are being framed and humbly prays that this Honourable Court reviews and/or issue an order to call for the lower court file for perusal/examination to satisfy itself as to the correctness, legality or propriety of orders pronounced by the trial court. 9. That it is in the interest of justice that the orders sought herein be granted as prayed to forestall the travesty of justice. That the application was opposed by the respondents who filed the following grounds of opposition;1. That the investigating officer, one Cpl. Irene Wambui, in the trial matter gave her sworn evidence on the 30th of November 2020 and was stood down by the prosecution due to issues that had been raised by the Applicants' counsel. 2. That contrary to the misleading allegations made by the Applicants, the investigating officer suffered a stroke shortly after being stood down and this affected her speech. 3. That on the 2nd of November 2022, the investigating officer appeared in court and sought an adjournment on the ground that she had not fully recovered from the stroke and her speech was not okay hence she was not able to give her evidence. 4. That the prosecution made an application for the investigating officer who had taken over from her to adopt her statement and testify on her behalf. 5. That the court ordered that given that the initial investigating officer was unwell, the officer who took over from her proceed to produce her statement as the matter was long standing. 6. That Section 33(b) of the Evidence Act permits the admission of statements, written or oral or electronically recorded, of admissible facts made by a person in the ordinary course of business or in the discharge of professional duty who has become incapable of giving evidence or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable. 7. That the ruling delivered by the Trial Magistrate on the 2nd of November 2022, which forms the subject matter of this Application is in line with Article 50(2) (e) of the Constitution which provides that fair trial includes the right to have the trial begin and conclude without unreasonable delay. 8. That the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. 9. That in terms of the governing provisions on revisionary jurisdiction the canons of illegality, irregularity, incorrectness, and unjustness, or impropriety must be given their purposive meaning so as not to occasion an injustice to the due process clauses guaranteed under article 50 of the Constitution. 10. That the Applicants have failed to show how the ruling of the trial court dated 10th July 2024 was illegal, irregular or incorrect. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 4

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11. That the Applicants by filing a revision application against an interlocutory order are inviting this Honorable Court to interfere with the discretion of the trial court so expressly provided for in the Criminal Procedure Code. Applicants’ Submissions 6. The Applicants submitted that they were charged with the offence of giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code. The substance of the charge is that they allegedly provided false information to CPL Irene Wambui regarding alleged misappropriation of funds. 7. The Applicants contend that the prosecution’s case is fundamentally defective due to the failure to call CPL Irene Wambui, the investigating officer and the alleged recipient of the false information, to testify. 8. They argue that the entire charge revolves around the alleged communication between themselves and the said officer, and therefore no other witness can competently testify on that interaction. 9. The applicants contend that the absence of this key witness renders the charge incapable of being sustained. 10. They further assert that neither the arresting officer nor any other relevant witness can testify to establish that false information was indeed given, leaving critical evidentiary gaps in the prosecution’s case. 11. The Applicants challenge the trial court’s ruling permitting another investigating officer to testify on behalf of CPL Irene Wambui. 12. The applicants argue that such substitution is unfair, oppressive, and prejudicial, as it deprives them of the right to cross-examine the maker of the statement. 13. According to the applicants, allowing another officer to adopt the complainant’s statement and testify amounts to admitting evidence that cannot be properly tested, thereby violating their right to a fair trial. 14. The applicants further contend that the prosecution cannot “create a complainant” by introducing a substitute witness who was not directly involved in the alleged events. 15. The Applicants maintain that the only lawful course available to the prosecution is either to produce CPL Irene Wambui for cross-examination or to terminate the proceedings for lack of a competent complainant. 16. The applicants assert that admitting the complainant’s statement through another officer as evidencein-chief is untenable in law. 17. In response to the Respondent’s grounds of opposition, the Applicants acknowledge the explanation that CPL Irene Wambui had previously testified but was stood down and later became unwell after suffering a stroke. 18. However, they maintain that her unavailability does not justify the admission of her evidence through another officer in a manner that prejudices their right to cross-examination. 19. The applicants further argue that the trial court failed to properly consider the nature of the charges and the centrality of her testimony before making its ruling. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 5

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20. In their analysis, the Applicants reiterate that the charge hinges entirely on whether false information was given to CPL Irene Wambui, and that without her testimony, the prosecution cannot establish this essential element. They therefore urge the court to find that the impugned orders are irregular and unjust, and to exercise its revisionary jurisdiction to intervene. 21. In conclusion, the Applicants submit that it is in the interests of justice that the High Court grants the orders sought, including calling for the lower court file, reviewing the impugned ruling, and terminating the proceedings to prevent a miscarriage of justice Respondent’s Submissions 22. The prosecution did not file submissions and when Mr Mogere Prosecution counsel appeared before me on the 23rd February 2026 he sought to rely on the grounds of opposition largely arguing that under Section 33 of the Evidence Act would permit the procedure adopted by the trial court. 23. In his view counsel submitted that the lower court did not her by allowing another witness to step in and testify in place of the complainant since she was no longer able to appear and give evidence. 24. Counsel for the prosecution urged this court to dismiss the application. Analysis and Determination 25. The burden of proving the guilt of the accused persons is always on the prosecution. The law requires that the case against the accused persons be established beyond a reasonable doubt. 26. The law further grants the prosecution the liberty to choose who to call as their prosecution witness under Section 143 of the Evidence Act. The section provides that no particular number of witnesses shall, in the absence of any provisions of the law to the contrary, be required for the proof of any fact. 27. The law therefore allows the prosecution to decide in appropriate cases where corroboration is not required in law to prove a particular fact by calling any witness that they to hold crucial evidence to testify in support of a charge. 28. The burden of proof lies with them and must be discharged before a court can return a verdict of guilt. The accused bears no duty to assist the prosecution. He has the option of remaining silent throughout the trial. 29. In R v Lifchus (1997) 3 SCR 320 the Canadian Supreme court gave the following direction; “ The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so ingrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must giver the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 6

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30. In deciding the witnesses to call the prosecution must therefore remember that the accused person’s right to a fair trial should not be compromised. The accused person has the right under Article 50(2) of the Constitution to be told of the witnesses intended to be called and that he should in the course of trial be afforded an opportunity to confront the witnesses in cross-examination either by himself or through counsel to test the evidence against him. 31. The complaint by the applicants is that the prosecution in this matter was allowed to step down a witness who was the complainant in the matter after she had begun giving her evidence in chief. The complainant had testified at length before she was stood down following a complaint by the defense that she was testifying on matters that were not covered in her statement. 32. This court has perused the lower court file and it is indeed true that the witness CPL Irene Wambui was the complainant named in the charge sheet and that she testified at length in the trial court before she was stood down. 33. The prosecution later indicated to the trial court that the complainant was unable to appear and testify on account of illness. 34. This court has anxiously considered the rival submissions by counsel and the issue that emerges is whether a complainant in a criminal trial can be substituted in the middle of his or her evidence or at all. The answer to that question is in the negative. 35. This issue of substitution of a complainant becomes even more critical when one considers the nature of the charge that the accused persons face in the lower court. The offence is one of “Giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code. 36. The offence is of a personal character and it is only the individual to whom the alleged false information was given, that can positively say whether the information alluded to in the charge sheet was false and testify as to the actions he or she took to ascertain the truth or falsity of the same. The introduction of a substitute witness would render this impossible. 37. The prosecution has pleaded that Section 33 of the Evidence Act is applicable and would allow them to call any other officer to tender the complainants statement. With tremendous respect to counsel, that cannot be right. The witness was stood down in the middle of her testimony. The question that immediately arises is, what happens to the untested testimony of that witness which is on record? Secondly, how would the witness who is called to produce the complainant’s statement be able to tell what aspects of the information given to the complainant that were deemed to be false? 38. The role of a complainant in a criminal trial is so important that it cannot be delegated. The complainant sets in motion the investigation process which finally culminates into a prosecution. The information provided by the complainant establishes the substratum of any criminal investigation and prosecution. The complainant cannot therefore be substituted without compromising the fair trail of the accused who would be deprived of the right to cross- examine. 39. In Jack J Khanjira $ Another vs Safaricom Limited{2012}KEHC 5508 (KLR) Justice Mwongo at paragraph 23 of the decision stated;"in determining the scope of the mandate of a recognized agent acting under a Power of Attorney, careful scrutiny of the instrument itself is essential. In the present case, the donor granted Mr Kalama powers to;a) represent him in court for all intents and purposes in connection with the suit. This is a power only properly available to an advocate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 7

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(b) give evidence -this is obviously impossible as no person can substitute his evidence for another…’’(emphasis added). 40. The prosecution by seeking to introduce another witness other than the complainant is basically trying to substitute the evidence of the complainant which is not tenable in law. 41. To allow that to happen would open a dangerous window for complainants who run into difficulties in the course of giving evidence to avoid turning up in court for cross-examination. 42. The court cannot allow such a practice to take root in our justice system for it would certainly compromise the fair trial rights of an accused person. 43. The prosecution did not indicate the level of incapacitation of the complainant so as to justify invoking Section 33 of the Evidence Act which would have come to their aid only on matters touching on investigations if indeed the witness was to simply testify as an investigating officer and not the complainant. 44. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides that: The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself with the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 45. Article 165(6) of the Constitution provides that: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court. 46. This court in exercise of that power called for the record of the lower court and upon perusal of the record, the court agrees with the applicants that the learned honorable magistrate erred in law by allowing the substitution of the complainant with another witness. 47. The order is prejudicial to the fair trial rights of the applicants and is therefore set aside for it is irregular and incorrect in law. 48. The DPP has the option of either withdrawing the charges or proceeding with the matter as and when the complainant shall be available for the hearing. 49. The architects of our Constitution foresaw scenarios such as this that would justify the invocation of the Director of Public Prosecutions power under Article 157 (6) (c) and (8) of the Constitution. 50. Public interest demands that where prosecution is no longer feasible the provisions of Sections 82 and 87 of the Criminal Procedure Code as read with Article 157(6) (c) and (8) of the Constitution be invoked. However, this court is alive to the provisions of Article 157(10) of the Constitution and cannot direct the DPP on what to do. 51. The upshot of the above is that the Ruling allowing the substitution of the complainant with another witness is hereby quashed. 52. The file shall be returned to the trial court for the parties to exercise the options available to them in law. 53. It is so ordered. The file is to be closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 8

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DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Applicant absent Mogere for Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11650/eng@2026-04-14 9

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