REPUBLIC OF KENYA IN THE TIGANIA LAW COURTS CRIMINAL CASE E294 OF 2024 PA NDEGE, SPM BETWEEN REPUBLIC ............................................................................................. PROSECUTOR AND JACOB MWENDA MUNGANIA ................................................................1 ST ACCUSED ERICK MWENDA…………………………………………………………………………..…….2ND ACCUSED RULING 1. Jacob Mwenda Mungania and Erick Mwenda, the accused were respectively charged with the offences of obtaining money by false pretenses contrary to Section 312 as read with Section 313 of the Penal Code, and stealing contrary to section 268 as read with section 275 of the same code.
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republicofkenyainthetiganialawcourtscriminalcaseno.e294of2024pandegespmbetweenrepublicprosecutionsandjaco bmwendamungania1staccusederickmwenda2ndaccusedruling 2. The accused denied the charges and the hearing commenced before Hon. J. M. Macharia (SPM – as he then was) on 15/05/2025. The magistrate heard 3 witnesses before he was transferred from this station. This matter has therefore been brought before me for further hearing. 3. I have explained the provisions of Section 200 of the Criminal Procedure Code to the accused. The accused stated that they want this case to start a fresh as they strictly want to invoke their rights under Section 200 of the (CPC). In the case of Joseph Kamau Gichuki v Republic [2013] eKLR the Court of Appeal stated that: This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses 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. 4. The accused stated that they want the case to start a fresh for reasons that the trial magistrate is new and that the magistrate should be able to note the Page 2 of 5
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republicofkenyainthetiganialawcourtscriminalcaseno.e294of2024pandegespmbetweenrepublicprosecutionsandjaco bmwendamungania1staccusederickmwenda2ndaccusedruling demeanors of the witnesses. The learned prosecution counsel, Ms. Mbae, has strenuously objected to the case starting afresh. In her objection, learned counsel has submitted that this case is an old matter. That the witnesses stay in Mombasa and it will therefore be difficult to avail them to testify afresh herein. That one of the investigating officer has since been transferred and it may be an uphill task for the remaining investigation officers to trace and bond the witnesses who had already testified herein. 5. Relying on the case of Joseph Kamau Gichuku v Republic (supra), I find that the reason that the accused has given for demanding that this case to start a fresh has no merit. This case has been in court since 2021 and most of the witnesses have already testified. In fact from the charge sheet, only 1 witness should be remaining herein. Given that it has been confirmed that the witnesses who are to be recalled resides in Mombasa, over 750km away, I do agree with the prosecution that to require them to again come and testify afresh would be to require too much from them. Further, starting the hearing in this case a fresh will cause delay to the cause of Justice. Article 159(2)(d) of the Constitution provides that Justice should not be delayed. This means that a case once initiated should be resolved without unreasonable delay. Page 3 of 5
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republicofkenyainthetiganialawcourtscriminalcaseno.e294of2024pandegespmbetweenrepublicprosecutionsandjaco bmwendamungania1staccusederickmwenda2ndaccusedruling 6. The case of Ndegwa v. R (1985) eKLR was clear that Section 200 of the Criminal Procedure Code (CPC) is a provision of the law that is intended to be used sparingly in cases where circumstances are likely to defeat justice. I do not find any circumstances herein that might lead to the defeat of justice if this matter proceeds from where it had reached. No such circumstances have been demonstrated to my satisfaction. In fact, it would instead defeat justice if I order for the trial herein to commence afresh before me, several years after it had initially commenced. 7. Moreover, it is not a requirement of the law that such cases should automatically start afresh. What the court is obligated to do is to explain the legal provision as specified. The stated provision of law is supposed to be invoked where justice demands and all parties, the prosecution, witnesses and accused must be treated fairly. 8. I have already complied with the provisions of Section 200(3) of the Criminal Procedure Code and I do find it mischievous or lack of good faith on the part of the defense to have the witnesses herein recalled for a fresh hearing. That demand by the accused is not in the best interest of a speedier and fair trial as required and I do therefore direct that the matter proceed from where it had Page 4 of 5
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republicofkenyainthetiganialawcourtscriminalcaseno.e294of2024pandegespmbetweenrepublicprosecutionsandjaco bmwendamungania1staccusederickmwenda2ndaccusedruling reached without re-calling of the witnesses who had testified earlier. The proceedings shall therefore be typed to enable me go through the same in readiness for further hearing as ordered and/ or directed herein. It is so ordered. DATED, SIGNED AND DELIVERED IN TIGANIA OPEN COURT THIS…22nd ……. DAY OF ……Septembe….,2026. HON: ALOYCE PETER NDEGE SENIOR PRINCIPAL MAGISTRATE In the Presence Of: Court interpreter: Mugambi Prosecution counsel: Mbae 1st Accused: Present 2nd Accused: Present Victim: Victim CT: Mn on 26/10/26 Page 5 of 5
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