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JudgmentADAM AMIGO VS REPUBLIC5 min read

ADAM AMIGO VS REPUBLIC

High Court at Mombasa High Court · · Wendy Micheni


  1. This Court is being called to determine the Notice of Motion application by the Applicant dated 8th April, 2024 where the Applicant sought the following: -
  2. Spent
  3. Spent
  4. THAT the whole Ruling of the Hon. Omido, J.M Senior Principal Magistrate, delivered on 6th February, 2024 be revised.
  5. THAT this Honourable Court do make an order for Criminal Case S.O. No. E080of 2021 Shanzu to start de-novo.
  6. THAT application be heard inter parties on such date and time as this Honourable court may direct
  7. The application was premised on the grounds on the face of it and that of the 20th paragraphed affidavit in support by Adam Amigo the application where he averred that: -
  8. The Applicant was the accused person in CRIMINAL CASE (S.O) NO. E080 OF 2021 at Shanzu Law Courts where he was accused of defilement.
  9. In CRIMINAL CASE (S.O) NO. E080 OF 2021 SHANZU the matter proceeded for hearing on 4th October, 2022 before Hon. Nelly Kariuki when the Applicant was appearing in person without representation.
  10. On the said date, two key prosecution witnesses testified being PW-1 the medical doctor and PW-2 the Complainant.
  11. The Applicant did not cross-examine the medical doctor because he did not understand the medical language and terms used by the doctor.
  12. Further the Applicant was dissatisfied with the manner with which the hearing was conducted because during the hearing, PW-2 the complainant gave information in her testimony which would have ruined the prosecution case and the prosecutor sought leave from the court to speak to her witness before they could proceed with the hearing.
  13. When the court resumed for hearing the Complainant gave inconsistent information which raises doubt on the prosecution case.
  14. The Applicant informed the Honourable Court of his dissatisfaction with the manner in which the case was being conducted but he was not given audience and neither was it recorded in the court proceedings.
  15. The Applicant through his well-wishers was able to appoint an advocate and on 22nd May, 2023 the Applicant's advocate made an oral application to the court that the matter starts de-novo in the interest of justice.
  16. On 6th February, 2024 Hon. Omido, J.M made a ruling stating that there was no valid reason for the matter to start de-novo and gave directions that the matter proceeds from where it had reached.
  17. The Applicant was aggrieved by the decision of the trial court because he has been denied his right to a fair trial.
  18. Substantial injustice was highly likely to occur if the matter does not start afresh to give the Applicant’s counsel an opportunity to cross-examine the complainant and the medical doctor.
  19. No prejudice would be suffered by the prosecution if this application was allowed as prayed. In any event, justice will not only be done but also be seen to be done to both parties.
  20. The Complainant testified that she was born on 3rd May, 2005 which implied that at the time of the alleged incident she was 16 years old and currently she was 19 years old, thus he did not see any difficulty by the prosecution in recalling the witnesses.
  21. The matter was now scheduled for further hearing on 24th April, 2024.
  22. There was need to urgently obtain the order staying further proceedings in CRIMINAL CASE (S.O) NO. E080 OF 2021 at Shanzu pending hearing and determination of this application
  23. The Respondent opposed the application on the grounds that the Minor would be prejudiced if the Court was to allow the application for stating the trial denovo.

Analysis and Determination

  1. I have looked at the application and the response thereof. What constitutes a new trial has been discussed by our courts in various cases. Mativo, J (as he then was) in Kenya Anti-Corruption Commission vs. Michael K. Gituto [2015] eKLR while dealing with de novo hearing cited the case of Kajubo vs. The State and expressed himself as hereunder:

“Starting the case de-novo entails re-calling all the witnesses. ‘The Latin Maxim ‘De Novo’ connotes a ‘New’, Fresh", a ‘beginning’, a ‘tart’ etc. In the words of the authors of Black’s Law Dictionary, De Novo trial or hearing means trying a matter a new, the same as if it had not been heard before and as if no decision had been previously rendered...new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ court hears matter as court of original and not appellate jurisdiction. That a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to re-litigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate. The consequence of a retrial order or a de novo (a Venire De Novo), is an order that the whole case should be retried or tried a new as if no trial whatsoever has been had in the first instance.”

  1. For a matter to be tried de novo would mean considering the matter anew, as if it had never been heard. The foregoing makes it clear that a de novo trial should examine the evidence before it afresh. Obviously since a retrial has been ordered and the case is to be heard de novo, the plaintiff must reprove his case as if there has been no earlier trial. It is crystal clear from the above authorities that the plaintiff must prove his/her case afresh though previous evidence in an abortive trial is admissible as long as the ends of justice are met. There is nothing one can add to the above explanation. 
  2. The fact is very clear that a de novo trial must be started from the beginning as if a trial had never taken place and the matter decided on its merits. It is also clear that the expression “new trial” trial de novo, ‘retrial’, ‘fresh hearing’, ‘trial a second time all have the same meaning. 
  3. I have examined the record of the trial court. It is that the Applicant was not represented when the doctor gave evidence and he did not cross examine the said witness. It is also at the time the Complainant was giving her evidence was contradictory and had to be stood down. In as much as it was desirable to expediate matter; this should not be at the detriment of justice and a fair trial.

Conclusion

  1. Having said that much, this court as empowered by Section 364(1)(c) of the Criminal Procedure Code revises the Ruling and directs that PW 1 and PW 2 be recalled for the purposes of further cross examination by the Defence only. Further an order be and is hereby made that the file be placed before the Chief Magistrate for a further date and directions in 16th December 2024

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….………28TH…DAY OF ………NOVEMBER………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant

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