Republic v 1. Kennedy Omondi Oduor Alias Kuk Alias Guks & 4 others

5. All the five accused persons were represented by counsel who cross examined the witness. 6. The cross examination of PW1 John Ogutu happened on 18/2/2026. 7. The witness before he could be cross examined expressed fear that there were so many people in court and he was therefore apprehensive that he may be harmed after testifying. 8. The court however asked the witness whether he had been threatened by anyone and he responded in the negative. 9. The court warned the members of the public of the danger of interfering with witnesses and urged all those present to ensure that they do not take the law into their own hands. 10. The court further directed the investigation officer in this matter who was present to ensure that in the event a report of witness intimidation or interference, prompt investigations are conducted and the offending persons held to account. 11. Following the assurances given to the witness by the court the witness agreed to continue giving evidence and he was cross- examined without a hitch by the deference counsel led by MR. Ashitiva for the 3rd Accused. 12. During cross-examination by MR ASHITIVA, MS GITHANDA, MR. KIOO the witness was confident and testified without hesitation. 13. After the cross-examination this court invited MS DELA prosecution counsel to re-examine the witness in line with the provisions of Section 145 (3) of the Evidence Act. APPLICATION TO DECLARE WITNESS HOSTILE 14. It was that stage that MS DELA moved the court for under Section 146 (4) of the Evidence Act and Section 156 of the Criminal Procedure Code to have the witness declared hostile and the prosecution be allowed to cross examine him. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 2 KENNEDY OMONDI ODUOR Alias KUK Alias

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15. According to MS DELA the reason for seeking to declare the witness hostile was that PW1 had recanted his evidence. 16. MS DELA further told the court that the prosecution would be seeking to investigate whether the witness had been intimidated or won over by the defence. 17. Counsel went further to submit that the witness had introduced other persons during cross examination who never featured during examination in chief. 18. In particular counsel singled out the issue of PW1 having been allegedly given names by MR. OKINDA as a matter that never featured in examination in chief. 19. It was on that basis that the prosecution sought to have the witness declared hostile and that the prosecution be allowed to investigate the witness. RESPONSE TO THE APPLICATION 20. MR. ASHTIVA counsel for the 3rd accused led the rest of the defense in opposing the application. 21. Counsel submitted that the witness PW1 had not introduced anything new since the name of MR. OKINDA had already been mentioned PW1’s statement. 22. According to MR. ASHTIVA assessing the witnesses demeanor, one could not discern any element of compromise to warrant the cause suggested by the prosecution being taken. 23. Counsel further argued that the accused persons on the dock were men of limited means and could not influence the witnesses. 24. Counsel submitted that justice should not only be done but be seen to be done. 25. Counsel urged the court to bear in mind that the accused persons are still in remand and that the truth needs to come out in the trial so that the guilt or otherwise of the accused persons can be determined fairly. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 3 KENNEDY OMONDI ODUOR Alias KUK Alias

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26. MR KIIO for the 4th and 5th accused submitted that the application does not meet the threshold to have the witness declared hostile. According to counsel in order for the court to have the witness declared hostile the prosecution should demonstrate that the witness has recanted substantial part of their written or oral testimony in court. In the instant case that had not been established and the application should be rejected. 27. Further, MR OKINDA the CEO to the group that PW1 belonged to together with the deceased had been mentioned severally as having talked to the witness and that all that PW1 did in cross-examination was to reveal the details of their communication which according to MR. KIIO was proper considering that MR. OKINDA is listed as a prosecution witness. 28. The defense further argued that the prosecution will have an opportunity to clarify all the matters that have arisen in cross examination when they reexercise their right to re-examine the witness. Further, the court was urged to find that the cross examination was within the confines of relevance and therefore there was no need to declare the witness hostile. MR KIIO strongly suggested that the application by the prosecution is calculated to delay the hearing of the matter considering that all the accused persons were denied bail pending the hearing of the evidence of PW1. The court was therefore urged to reject the application. 29. MS GITHANDA for the 1st accused on her part submitted that mere hostility by a witness should not lead to the rejection of the evidence of the witness and that the court should allow the matter to proceed. Counsel went on to argue that their clients have been in custody and do not have the, means to intimidate or influence the witness while in custody. 30. MR MUNYIRI counsel for the 2nd accused urged the court to find that the applications made under Section 150 of the Criminal Procedure Code and 146 NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 4 KENNEDY OMONDI ODUOR Alias KUK Alias

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(4) of the Evidence Act are basically predicated on the court exercising its discretion in favor of the prosecution. 31. Counsel urged the court to reject the application since the prosecution had not raised the question of PW1 having recanted his evidence during examination in chief. According to MR MUNYIRI the prosecution could only have properly sought to have the witness declared hostile during examination in chief. Having failed to do so the court the court should not entertain the application. 32. MS DELA prosecution counsel in a swift rejoinder stated “the witness has not just recanted his statement but he ahs effectively absolved the accused persons from the offence”. Counsel urged the court to allow her application to have the witness declared hostile. ANALYSIS AND DETERMINATION 33. The power of the court to declare a witness hostile is to be found under Section 161 of the Evidence Act. The section provides: Discretion to allow cross-examination of own witness. The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. 34. The section does not state the stage at which the leave to cross-examine own witness may be granted, but given that the statute states that the person calling the witnesses may be allowed to put any questions to him which might be put to him by the adverse party in cross-examination, it follows therefore that such leave can only be properly sought by the witness at the stage of examination -in- chief so that the other party gets the opportunity to cross- NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 5 KENNEDY OMONDI ODUOR Alias KUK Alias

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examine the witness after the person calling him has exhausted his crossexamination. 35. To do otherwise would be to deny the adverse party an opportunity to crossexamine the hostile witness. However, if the court is minded to declare a witness hostile at the stage of re-examination, then the opposing party must be allowed an opportunity to further cross examine the witness on the emerging evidence from the cross-examination by the party who called him. 36. The danger of adopting such a practice would be to prolong the hearing and contribute to delays in the conclusion of trials. The party calling a witness must therefore be able to contain his witness during examination in chief and any detection of manifest deviation from earlier recorded statements should be raised at that stage to promote good order in the conduct of trials. 37. A witness may be deemed to be hostile if he contradicts his earlier sworn statement, refuses to answer direct questions, shows bias towards the opposing party or exhibits behavior that obstructs the examination process. It means therefore that this could possibly happen even at re-examination stage. 38. However, the court cannot without evidence of any of the above proceed to declare a witness hostile simply because the witness gives what may be considered as unfavorable evidence to the party who called him. The burden of establishing that a witness is hostile lies on the party who wishes to have the leave to cross-examine his own witness. 39. The prosecution in the instant matter led the witness in examination in chief without any complaint at all that the witness had recanted his statement. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 6 KENNEDY OMONDI ODUOR Alias KUK Alias

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40. The prosecution did not therefore have any issue with the testimony of the witness until after cross-examination because of the nature of matters that he brought to light during cross examination. 41. The prosecution appears clearly to have been rattled by the testimony of the witness during cross examination prompting them to seek to have the witness belatedly declared hostile. 42. Notably, the prosecution does not seem to have any concerns with what the witness stated during examination in chief, meaning therefore, that he had given testimony in chief that they agreed with and that the witness was truthful. 43. The witnesses swore to tell the truth and there has not been any allegation this far that he may be guilty of giving false evidence. In order to succeed in the instant application. The prosecution needed to show that the witness has in a fundamental way recanted his testimony but not simply say he had introduced names of other persons during cross-examination. 44. The nature of cross examination under Section 146(2) of the Evidence Act is that the defense can elicit information from the witness that the prosecution would not be able to because the defense has the latitude to put to the witness leading questions that might attract answers that the prosecution could not reasonably anticipate in examination in chief. 45. The fact that the witness has through answers to questions put to him during cross-examination said things that are not in tandem with his evidence in chief should not necessarily lead a court to declaring such a witness hostile. The evidence may simply be unfavorable to the party calling him but may not necessarily amount to hostility. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 7 KENNEDY OMONDI ODUOR Alias KUK Alias

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46. The term “hostile witness” is defined in the Black’s Law Dictionary 2nd Edition as “a witness that the Court feels is hostile against the party they are supposed to testify for”. On its part, Merriam Webster dictionary defines the term as, “a witness in a legal case who supports the opposing side.” 47. Under Section 161 and 163 of the Evidence Act, the Court is given discretion to allow cross examination of own witness and impeachment of the credit of such witness. 48. Indeed, Section 161 of the Evidence Act provides that: “The Court may in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party.” 49. The provision is explicit that the intention of the party seeking to discredit his witness must lay a basis for the request for leave to cross-examine otherwise the court would more often than not find itself declaring a witness hostile on the basis of matters that could easily be explained in reexamination of the witness by the party calling him. 50. The trial courts should not simply allow witnesses to be contradicted on their previous statements without allowing the witness an opportunity see the portion that he is sought to be contradicted on and offer him an opportunity to explain himself on any departure therefrom. 51. In Malik’s textbook CRIMINAL TRIAL and INVESTIGATIONS along with Power $ Duties of Courts and Functions of the Police $ Prosecuting Agencies 2013 Edn at page 868-869 he writes; “3) Contradicted by reference to previous statements in writing. -It is said that in many Courts subordinate to the High Court, the practice of the Presiding Judges and Magistrates is to discourage questions seeking to NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 8 KENNEDY OMONDI ODUOR Alias KUK Alias

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contradict the maker of the first information report, with reference to the Statements set out in the First Information Report itself. If such a practice does prevail then it is to be deprecated. No Court should allow a witness to be contradicted by reference to the previous Statements in writing or reduced to writing unless the procedure set out in the Evidence Act has been followed. It is possible that if the attention of the witness is drawn to these portions with reference to which it is proposed to contradict him, he may be able to give a perfectly satisfactory explanation; and in that vent the portion in the previous Statement which would otherwise be contradictory would no longer go to contradict or challenge the testimony of the witness. It is well-settled that before using any prior Statements of a witness to contradict him, attention of the witness should be drawn to relevant portion and he should be given an opportunity of explaining any apparent discrepancy. This is more so in the case of contradiction by omission. In the instant case while contradicting the witness by their earlier Statements they were not asked to explain the alleged inconsistencies or contradiction.” (emphasis added). 52. Flowing from the above it is therefore important to highlight that if the intention of the prosecutor is to contradict the witness on the contents of the previous statement, the proper thing to do would be to start the reexamination and put the portion of the statement to the witness and if the witness is unable to satisfactorily explain his departure therefrom, then at that point the prosecutor may explore the possibility of having him declared hostile to allow cross-examination. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 9 KENNEDY OMONDI ODUOR Alias KUK Alias

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53. The present application is therefore immature and nothing has so far crystalized to enable the court determine with certainty that the witness is hostile and therefore ripe for cross-examination. 54. In the case of Alowo vs. Republic (1972) EA, the Court stated the following: “The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.” 55. The prosecution must therefore decide whether they intend to re-examine the witness or not. 56. The defense counsel indicated that there is nothing new that has emerged during cross-examination which was not contained in the witnesses recorded statement or said in examination in chief. What I understand the defense to be saying is that all the issues raised in cross-examination are matters that can be clarified in re-examination without having to declare the witness hostile. 57. The prosecutor must also be reminded of the danger of hastily declaring her own witness hostile. The effect of the weight to be attached to the evidence need not be overemphasized. If indeed Pw1 is a crucial witness there is need for absolute caution because the declaration of the witness as being hostile would render the evidence worthless. 58. The interests of justice must be borne in mind in the manner the trial is conducted. Justice, as submitted by Mr Ashtiva counsel for the 3 rd accused, must not only be done but be seen to be done. It is justice to the accused and the victims. The duty of the prosecutor as a minister of justice is to elicit all facts from the witnesses for or against the prosecution’s case. It is the duty of the prosecutor to strive to secure convictions at all costs. 59. The prosecutor must lead evidence that brings out all the facts relevant to the matter both inculpatory and exculpatory. That is the high and sacred duty of a NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 10 KENNEDY OMONDI ODUOR Alias KUK Alias

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prosecutor. The effect of declaring a witness hostile was aptly captured in Batala vs. Uganda [1974] E.A. 402 in which it was held as follows: “The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to crossexamine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.” 60. The Court of Appeal, in the case of Daniel Odhiambo Koyo v Republic [2011] eKLR, also held as follows: “There is a thin line between a hostile and refractory witness. Both are people who display reluctance in giving evidence as required of them. Normally, a Court will take a perverse view of the credibility of the hostile or refractory witness in view of his shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify.” 61. Following the wisdom espoused the two decisions cited above, and bearing in mind the stage at which the proceedings have reached, this court is not minded to grant the prayer by the prosecution to declare the witness hostile at this stage and allow cross-examination. The application came too late in the day and there is nothing to suggest that the witness has recanted his evidence. 62. Before I pen off, it is important to touch on an issue the prosecution raised of wanting to investigate whether the witness has been compromised and or interfered with. The court must put in succinctly that matters of whether to investigate the witness or not do not fall within the purview of this trial. 63. The prosecution is at liberty to deal with its own witnesses away from this court as this court would only intervene if there were issues regarding of obstruction of justice in this matter or issues of perjury. None of those issues have been raised before me and I do not wish to say anything more. NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 11 KENNEDY OMONDI ODUOR Alias KUK Alias

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64. In the end the application is hereby declined and the matter shall proceed from where it had reached. 65. PW1 shall therefore be recalled to the stand to continue with his testimony. 66. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 9th day of APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Ms Dela/Njoroge for State Githanda for 1st Accused Cheikoyo h/b Mbugua Munyiri for 2nd Accused Ms Achiel h/b Ashitiva for 3rd Accused. Kiio for 4th and 5th Accused NAIROBI HC CR CASE E 007 OF 2024 – Republic –vsGUKS & 4 OTHERS 12 KENNEDY OMONDI ODUOR Alias KUK Alias

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