(Arising from the ruling delivered on 24th April 2025 in Chief Magistrate’s Court at Mombasa in Criminal Case No. E1609 of 2024)
THE APPLICATION
1. This Court is called upon to determine the Notice of Motion dated 20th June 2025 brought under Articles 25(c), 50, 159 and 165 of the Constitution of Kenya, and Sections 200(3), 362 and 364 of the Criminal Procedure Code. The Applicant seeks revision of the ruling delivered on 24th April 2025 in Chief Magistrate’s Criminal Case No. E1609 of 2024 and prays that the prosecution case be re-opened for purposes of cross-examination.
2. The application is supported by the affidavit sworn by the Applicant on 20th June 2025. The Respondent neither filed a response nor submissions.
3. I have considered the application, the affidavit in support, and the lower court record.
Background
4. The Applicant faces a charge of cyber harassment contrary to Section 27(1)(c) as read with Section 27(2) of the Computer Misuse and Cybercrimes Act, No. 5 of 2018.
5. The record shows that the Applicant was initially represented by counsel. However, on 13th March 2025, when the matter proceeded for hearing, the Applicant was unrepresented and the prosecution called all its witnesses, who testified and were cross-examined by the Applicant in person. The prosecution subsequently closed its case.
6. An application to re-open the prosecution case to allow proper cross-examination upon securing counsel was dismissed by the trial court on 2nd April 2025, leading to the present application.
Issues for Determination
7. The central issue is whether the refusal to re-open the prosecution case violated the Applicant’s non-derogable right to a fair trial , particularly the right to be represented by an advocate and to effectively challenge evidence.
Law and Analysis
8. Article 25(c) of the Constitution expressly provides that the right to a fair trial shall not be limited . This provision elevates the right to a fair trial to a supreme constitutional guarantee, incapable of derogation under any circumstances.
9. Article 50(2)(g) further guarantees every accused person the right “to choose, and be represented by, an advocate” , while Article 50(2)(k) secures the right “to adduce and challenge evidence.” These rights must be read together with Article 25(c), which gives them constitutional primacy.
10. The Court of Appeal in David Njoroge Macharia v Republic [2011] eKLR held that the right to legal representation is a core component of a fair trial and that courts bear a positive duty to ensure that an accused person meaningfully enjoys that right.
11. Likewise, in Republic v Karisa Chengo & 2 Others [2017] eKLR , the Supreme Court emphasized that a fair trial is the cornerstone of the criminal justice system and that any process which undermines that right cannot be sustained, regardless of procedural convenience.
12. While the record indicates that the Applicant did cross-examine the witnesses, cross-examination by an unrepresented accused—particularly in a technical statutory offence—cannot be equated to effective cross-examination by counsel. Fair trial is not measured by mere participation, but by the quality and effectiveness of that participation.
13. The High Court’s revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code is specifically intended to prevent miscarriage of justice. Where proceedings reveal a real risk that an accused person’s non-derogable right under Article 25(c) has been compromised, this Court is constitutionally obligated to intervene.
14. In Ndegwa v Republic [1985] KLR 534 , the Court held that no rule of procedure or convenience should override the duty of the court to protect the liberty of the accused and the integrity of the trial process.
15. This Court is satisfied that re-opening the prosecution case solely for purposes of cross-examination will not occasion undue prejudice to the prosecution, while failure to do so would perpetuate a trial process that falls short of the constitutional threshold set by Article 25(c).
16. I note that this is not one of those cases involving vulnerable witnesses such as a child who would be un duly traumatized and the matter is not overly old in the system. No un due hardship will be occasioned .
Disposition
16. In view of the foregoing, this Court finds that the Applicant’s non-derogable right to a fair trial under Article 25(c) was at risk of violation and that the interests of justice demand corrective intervention.
17. Accordingly, the Notice of Motion dated 20th June 2025 is allowed and the Court makes the following orders:
a. The ruling delivered on 2nd April 2025 in Chief Magistrate’s Criminal Case No. E1609 of 2024 is hereby set aside .
b. The prosecution case is hereby re-opened strictly for purposes of cross-examination only of the prosecution witnesses by the Applicant’s advocate.
c. No fresh evidence shall be introduced by the prosecution unless leave of the trial court is granted for good cause shown.
d. Upon completion of cross-examination, the trial shall proceed from the stage it had reached in accordance with the law.
e. NO ORDERS AS TO COSTS .
DELIVERED, DATED and SIGNED at MOMBASA this 18 th day of DECEMBER 2025. Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE.
IN THE PRESENCE OF:
MR GIKANDI NGUMBUINI FOR THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT
THE APPLICATION
1. This Court is called upon to determine the Notice of Motion dated 20th June 2025 brought under Articles 25(c), 50, 159 and 165 of the Constitution of Kenya, and Sections 200(3), 362 and 364 of the Criminal Procedure Code. The Applicant seeks revision of the ruling delivered on 24th April 2025 in Chief Magistrate’s Criminal Case No. E1609 of 2024 and prays that the prosecution case be re-opened for purposes of cross-examination.
2. The application is supported by the affidavit sworn by the Applicant on 20th June 2025. The Respondent neither filed a response nor submissions.
3. I have considered the application, the affidavit in support, and the lower court record.
Background
4. The Applicant faces a charge of cyber harassment contrary to Section 27(1)(c) as read with Section 27(2) of the Computer Misuse and Cybercrimes Act, No. 5 of 2018.
5. The record shows that the Applicant was initially represented by counsel. However, on 13th March 2025, when the matter proceeded for hearing, the Applicant was unrepresented and the prosecution called all its witnesses, who testified and were cross-examined by the Applicant in person. The prosecution subsequently closed its case.
6. An application to re-open the prosecution case to allow proper cross-examination upon securing counsel was dismissed by the trial court on 2nd April 2025, leading to the present application.
Issues for Determination
7. The central issue is whether the refusal to re-open the prosecution case violated the Applicant’s non-derogable right to a fair trial , particularly the right to be represented by an advocate and to effectively challenge evidence.
Law and Analysis
8. Article 25(c) of the Constitution expressly provides that the right to a fair trial shall not be limited . This provision elevates the right to a fair trial to a supreme constitutional guarantee, incapable of derogation under any circumstances.
9. Article 50(2)(g) further guarantees every accused person the right “to choose, and be represented by, an advocate” , while Article 50(2)(k) secures the right “to adduce and challenge evidence.” These rights must be read together with Article 25(c), which gives them constitutional primacy.
10. The Court of Appeal in David Njoroge Macharia v Republic [2011] eKLR held that the right to legal representation is a core component of a fair trial and that courts bear a positive duty to ensure that an accused person meaningfully enjoys that right.
11. Likewise, in Republic v Karisa Chengo & 2 Others [2017] eKLR , the Supreme Court emphasized that a fair trial is the cornerstone of the criminal justice system and that any process which undermines that right cannot be sustained, regardless of procedural convenience.
12. While the record indicates that the Applicant did cross-examine the witnesses, cross-examination by an unrepresented accused—particularly in a technical statutory offence—cannot be equated to effective cross-examination by counsel. Fair trial is not measured by mere participation, but by the quality and effectiveness of that participation.
13. The High Court’s revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code is specifically intended to prevent miscarriage of justice. Where proceedings reveal a real risk that an accused person’s non-derogable right under Article 25(c) has been compromised, this Court is constitutionally obligated to intervene.
14. In Ndegwa v Republic [1985] KLR 534 , the Court held that no rule of procedure or convenience should override the duty of the court to protect the liberty of the accused and the integrity of the trial process.
15. This Court is satisfied that re-opening the prosecution case solely for purposes of cross-examination will not occasion undue prejudice to the prosecution, while failure to do so would perpetuate a trial process that falls short of the constitutional threshold set by Article 25(c).
16. I note that this is not one of those cases involving vulnerable witnesses such as a child who would be un duly traumatized and the matter is not overly old in the system. No un due hardship will be occasioned .
Disposition
16. In view of the foregoing, this Court finds that the Applicant’s non-derogable right to a fair trial under Article 25(c) was at risk of violation and that the interests of justice demand corrective intervention.
17. Accordingly, the Notice of Motion dated 20th June 2025 is allowed and the Court makes the following orders:
a. The ruling delivered on 2nd April 2025 in Chief Magistrate’s Criminal Case No. E1609 of 2024 is hereby set aside .
b. The prosecution case is hereby re-opened strictly for purposes of cross-examination only of the prosecution witnesses by the Applicant’s advocate.
c. No fresh evidence shall be introduced by the prosecution unless leave of the trial court is granted for good cause shown.
d. Upon completion of cross-examination, the trial shall proceed from the stage it had reached in accordance with the law.
e. NO ORDERS AS TO COSTS .
DELIVERED, DATED and SIGNED at MOMBASA this 18 th day of DECEMBER 2025. Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE.
IN THE PRESENCE OF:
MR GIKANDI NGUMBUINI FOR THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT