(ARISING FROM THE RULING IN MOMBASA CM'S S O 72 0F 2016 DELIVERED BY HON D ODHIAMBO)
1. The Applicant filed the Notice of Motion Application under the provisions of Articles 50 and 165 (6) and (7) of the Constitution of Kenya 2010, and Section 362 and 364 of the Criminal Procedure Code and all other enabling provisions of the Law, and sought the following Orders:-.
1. Spent.
ii. THAT this Honourable court be pleased to FORTHWITH make an order Stay of the further Proceedings and/or the writing of the Ruling in Criminal Case Number S. O. 72 of 2016, Mombasa pending the hearing of this Application inter partes and further pending the hearing and determination of this Application.
ii. THAT this Honourable Court be pleased to FORTHWITH call for and examine the record of Criminal Case Number S. O. 72 of 2016, Mombasa, for the purpose of satisfying itself with the legality of all the proceedings therein and specifically Orders directing proceedings to continue in the absence of the Applicant.
4. THAT this Honourable Court be pleased to find and Order that the proceedings in Criminal Case Number S. O. 72 of 2016, Mombasa, wherein the Learned Magistrate Ordered that the Prosecution Witnesses testify in the absence of the Applicant, thus denying him an opportunity to cross-examine the said Witnesses, were in breach of the Applicant’s 2 Constitutional and Fundamental rights to a fair trial, thus set aside all the said proceedings and thus declare a mistrial.
5. THAT this Honourable Court do direct and order that Criminal Case Number S. O. 72 of 2016, Mombasa, be heard afresh and/or in the alternative, the all the Prosecution Witnesses who have testified in the said case be recalled for the purpose of cross-examination by the Applicant’s Advocates
. 6. THAT costs of this Application be provided for.
2. The said Application is supported by the Affidavit of HAMISI MOHAMED MWAROPIA sworn on the 28th July, 2024 and filed with the Application herein.
3. The gist of the Applicant’s Application is that the Applicant has been in remand at the Shimo La Tewa Maximum Prison since the years 2016, owing to the charges levelled against him in Criminal Case Number S. O. 72 of 2016, Mombasa.
4. Further, the Applicant is a man of limited knowledge and thus was not conversant with his fundamental rights, specifically a right to a fair trial. Further, due to the long period of being in remand, coupled with the Applicant’s mental challenges, the frustrations he has gone through will invite uncommon reactions from him, which would have appeared to be uncouth behaviours by the Trial Magistrate(s). all this time, the Applicant, who was facing serious Sexual offence case, was unrepresented.
5. Thereafter, the Advocates herein were instructed to offer pro-bono legal services to the Applicant. Thereafter, upon perusing the proceedings, in Criminal Case Number S. O. 72 of 2018, Mombasa, it dawned that the Trial Magistrate directed that the hearing of the case does proceed in the absence of the Applicant, which is in breach of his fundamental rights, specifically a right to a fair trial.
6. The Applicant’s Advocate then made an Application that the Prosecution Witnesses who had testified be recalled for the purpose of cross examination, but the said Application was also declined by the Trial Magistrate.
7. The Applicant thus submittted that due to the manner in which this matter has proceeded, the Applicant will not get a fair trial because the Prosecution case has been heard without his participation in any manner. This is because, despite keeping the Applicant away from the proceedings, the Trial Magistrate proceeded to hear all the Prosecution witnesses in the absence of the Applicant.
8. The Applicant’s position is that this Honourable Court has a constitutional responsibility to supervise the Subordinate Courts and satisfy itself with the proceedings thereof. Further, this matter is scheduled to proceed for the 3 hearing of the Defence case, and if the same does so proceed, the Applicant will be permanently barred from challenging the Prosecution evidence on record, since the same was not only heard in the absence of the Applicant, but also, no opportunity was accorded to him to cross-examine all the said Witnesses.
9. The right to a fair trial is a Constitutionally guaranteed right to every person as clearly provided for under Article 50 of the Constitution of Kenya, 2010, which provides:- Fair hearing 50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. (2) Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved; (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence; (d) to a public trial before a court established under this Constitution; (e) to have the trial begin and conclude without unreasonable delay; (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
10 The applicant submitted that despite the very clear provisions of the Constitution as replicated above, it is clear from the evidence and proceedings on record by the Trial Magistrate that there was obvious breach of the Applicant’s right aforesaid. This is because the Trial Magistrate made an order that the Prosecution case does proceed and its witnesses do test in the absence of the Applicant. In the premises, the Applicant had no opportunity to hear the evidence being tendered against him nor did he, at any point, cross examine the said Witnesses on their respective evidence.
11. In the case of Patriotic Guards Ltd v James Kipchirchir Sambu (Civil Appeal 20 of 2016) [2018] KECA 799 (KLR), with regard to the breach of the Constitutional right to a fair trial guaranteed under Article 50(1) of the Constitution of Kenya, 2010, the Court of Appeal held:- 4 The appellant has also contended that the judgment of the Court which directly affected it, was in breach, not only of the law, but also of the Constitution in so far as it condemned him without an opportunity to be heard and in breach of the right to a fair hearing guaranteed by Article 50(1). There is no need to restate the importance of a fair trial as guaranteed by the Constitution. The right to a fair trial remains at the heart of any judicial determination and courts should endeavor to protect and uphold the same. It is a cardinal rule and it emanates from the principle of natural justice.
In M K v M W M & another [2015] eKLR it was reiterated that; “The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. In ONYANGO V. ATTORNEY GENERAL (1986- 1989) EA 456, Nyarangi, JA asserted at page 459: “I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.” At page 460 the learned Judge added: “A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.” And in MBAKI & OTHERS V. MACHARIA & ANOTHER (2005) 2 EA 206, at page 210, this Court stated as follows: “The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.” In the circumstances of this case, there was no reason grave enough that would warrant the locking out of the appellant from pursuing its defence and counterclaim and allowing the trial to proceed to its logical conclusion. The interest of justice warrants this Court’s intervention
. 12. They urged that the manner in which the Trial Magistrate handled the matter is clear that the Applicant was contemned unheard, the effect thereof was that the Learned Magistrate failed to protect and uphold the Applicant’s right to a fair trial and thus abused the principle of natural justice. The Applicant was consequently not heard in the matter which he was likely to adversely affect him, and has consequently been adversely affected.
13. Their prayer was that the evidence tendered by the Prosecution Witnesses herein, in the absence of the Applicant, which was preceded by actions in breach of the Applicant’s right to upholding the rules of natural justice cannot be cured by holding that the decision would otherwise have been right. This is because the actions and Decision of the Trial Magistrate were in gross violation of principle of natural justice and the Applicant’s right to be heard, which thus both affected and prejudiced him without being afforded an opportunity to be heard.
14. The effect of the foregoing orders of the Trial Magistrate was that the Applicant’s constitutional and legal right to participate in the hearing of his Case coupled with the equal right to cross-examine the Prosecution Witnesses either by himself or through an Advocate duly appointed for the Applicant were trampled upon. The effect of failure to accord a party to cross examine Witnesses called by the opponent was addressed by the Supreme Court in the case of Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014 (Consolidated)) [2014] KESC 11 (KLR) 309. According to Tanford AJ, in The Trial Process: Law, Tactics and Ethics (2009) LexisNexis, 4th Ed. (page 283): “In civil cases, cross-examination is also a fundamental right. While a judge has more discretion to limit cross-examination in civil cases, the judge may do so only after a party has had a fair and substantial opportunity to exercise the right. The right of cross-examination encompasses not merely the right to ask questions, but also the right to elicit testimony. A witness can and should be compelled by the judge to answer proper questions. Continued refusal to answer may subject the witness to punishment for contempt. In extreme cases, where cross-examination is effectively denied, the court may strike out all or part of the direct examination or grant a mistrial — even if the denial of an opportunity for full cross-examination is no one’s fault. Whether the direct examination must be stricken because of the witness’s failure to submit to crossexamination is largely a discretionary decision for the trial judge. It depends not on whether the witness was justified in not answering, but on whether it is fair to permit the direct to stand unchallenged.” 310. It can, therefore, be accurately said that if a party is denied an opportunity to cross-examine a witness, a Court may strike out all or part of the evidence adduced during examination-inchief or declare the process a mistrial. The Court exercises its discretion in determining which of these two recourses it will have based on whether it would be fair to allow the testimony of that witness to remain unchallenged. 311. Miller M, in his article “Completed cross-examination - A prerequisite for a fair trial?" DR, November 2013:28 [2013] De Rebus 220 which discusses at length the right to cross-examine a witness as a pre- requisite for a fair trial, propounds particularly in respect of incomplete cross-examination that: 6 “A party has a right to adduce and challenge evidence. It is unknown what the result of a complete cross-examination may have been or how it may have affected the outcome of the case. Whether it is because of the right of an accused person to adduce and challenge evidence in terms of s 35(3)(i) of the Constitution, or the right of a litigant in a civil case to a fair public hearing in terms of s 34 of the Constitution or whether it is because of the audi alteram partem rule, a party has the right to be afforded an opportunity to complete cross-examination of a witness called by the other party whose evidence is prejudicial or potentially prejudicial to him or her. Without that it cannot be said that there was a fair trial. It follows from this that there can be no discretion to admit such evidence and that its exclusion has nothing to do with the probative value thereof. It is a guaranteed right. I am of the opinion that where cross-examination has not been completed such evidence should simply be excluded and treated as inadmissible and pro non scripto.”
15. The applicant also argued that flowing from the foregoing Decision of the Supreme Court, since the Applicant was denied both the right to be present when the Prosecution Witnesses testified, hear their evidence against him, as well as cross examining the said Witnesses, then there cannot be said at all to have been a fair trial in the matter at hand. The consequence therefore should be that the Applicant ought to be accorded to cross examine the Prosecution Witnesses who have testified in this matter, by having the Prosecution Case being opened.
16. Lastly, it was submitted that the Trial Magistrate ought to have appreciated that the Applicant was acting in person and failed to notify the Applicant of his Constitutional right, either to be represented by an Advocate of his choice or to have one hired for him by the State as expressly provided under Article 50(1)(g) and (h):- (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
17That emerging from the manner in which the proceedings in this matter were conducted, it was clear and/or obvious from the outset that substantial injustice will result to the Applicant; consequently, it was incumbent upon the Trial Magistrate to invoke the provisions of Article 50(1)(h) and make an order for an Advocate to be assigned to the Applicant by the State and at State expense. This was not done, in further breach of the Applicant’s guaranteed Constitutional right to be informed of the need to have an Advocate represent him and where he could not afford, have the State pay for the said legal Counsel. This is because of the nature of the case the Accused is facing in this matter.
18. The position of an unrepresented litigant was appreciated by the Constitutional Court in the case of Joseph Kaberia Kahinga & Others v Attorney General (Petition 618 of 2010) [2016] KEHC 3130 (KLR), wherein it was held, inter alia:- After due consideration of the matter as to whether courts have discretion in meting out any other forms of sentences in respect of capital offences and our understanding of the above authorities (Edwin Otieno Odhiambo, Godfrey Ngotho Mutiso and Joseph Njuguna Mwaura, (supra), and also in light of the interpretation that we have given to our mandate, we are of the view that although it may appear that Kenyan courts have no discretion to consider mitigation in the case where an accused person is convicted of a capital offence, however, we hold that it is a constitutional requirement for such an accused person to be granted an opportunity to present his mitigating circumstances before sentencing. This is because Article 50(2) of the Constitution sets out some of the principles that are considered to constitute fair trial. One of these principles is the right to lodge an appeal or apply for review in a higher court, if convicted (see Article 50 (2) (q)). Such mitigation will enable a court hearing the appeal to have a holistic view of the case, and in the event that the appellate court decides to alter the conviction from a capital offence to any other offence, it will have all the facts and circumstances of the accused on record to enable it assess the appropriate sentence for the reduced offence. Further, some mitigating circumstances may disclose certain facts that materially affect the finding made by the court to such an extent that it may result in the court arriving at a different decision. For instance, it is not unknown that many of the criminal charges brought before the courts relate to some form or other of land disputes. There can be circumstances where the trial court does not take into account such underlying circumstances. It may also be that the accused suffers from some form of mental illness which may not have been apparent during the trial. This court is not oblivious of the fact that in the majority of criminal trials especially before the magistrates’ courts, accused persons are not represented and may not be aware of their rights and due procedure of the court. Such circumstances may sometimes be brought out during mitigation of sentence. If such an accused person is denied a chance to mitigate the sentence solely because he has been convicted of a capital offence, we are of the considered view that it will deny him his constitutional right to fair trial. 19. Consequently, the Trial Magistrate was under Constitutional and Legal obligation to establish the mental capacity of the Applicant to stand trial and/or satisfy herself that the Applicant had such mental capacity to stand trial, in the face of the proceedings before him, and before ordering the said proceedings to continue, and also ensure that there was no miscarriage of justice to the Applicant, which he failed to do.
20. I called for the file and went through the proceedings.
21. I note that the applicant started raising issues as early as 2016 when he said he had a skin condition and the court ordered that he be taken to the coast general hospital for treatment.
22. Even on 2/12/2016- another order was for treatment was given. On 16/12/2016, it was reported that he did not receive treatment as he had abused the doctor.
23.Subsequently the matter was adjourned severally on accounts of the absence of witnesses.
24.The applicant objected to those adjournments, and the state was given a last adjournment.
All these proceedings were before Hon. F. Kyambia.
24. On 1/3/2018 the prosecutor indicated that he had 3 witnesses, but the applicant stated that he was not ready to proceed until the 2 persons who were found in the bar are made into witnesses.
25.Subsequently on 22/2/2019 before Hon. H. Nyakweba the applicant stated that he was arrested with Omar Kibwana and Ali Shaban who were then charged with the offence of being drunk and disorderly.
26.He therefore demanded that he be charged with the same offence or that the two be brought and charged with him. He then added that he would not be ready to proceed because the charges are fabricated.
27.After that the applicant declined to proceed with the case until the two were brought to court.
This is what led to the proceedings of 15/7/2019.
He walked away.
29.Subsequently 4/9/2022 he walked away banged tables leading the court to find him guilty of being in contempt of the court.
The same pattern was repeated on 30/11/2019 and 27/11/2019 when the trial court then Hon. Adet sent the file to the chief magistrate for directions after noting that:
"This was a serious offence, and she would not want to proceed in his absence despite the drama he exhibited."
30. When the file was taken before Chief magistrate HON E Nyaloti , for directions before ON 28/11/2019, she stated that:
"I have read through the court’s records. I have noted that the accused person is full of drama and is deliberately delaying the hearing of this case. The accused is informed that it is in his best interests and the interest of the victims for the trial to be continued expeditiously. The accused is warned that the case will proceed in his absence if he continues with the unnecessary drama. The file is reallocated to court No 8 for hearing."
31. On 4/12/19 HON nyabera sent it back T o HON ADET.
32. On 2/1/2020 HON ADET stated:
"In view of the accused behaviour (making noise, shouting sometimes leaving the court room) the matter shall move forward, his absence notwithstanding".
32.This history is also captured in the ruling delivered by HON David odhiambo in which he cited the decisions by both the high court and the court of appeal in Daniel Karuma alias NJALUO.
THE COURT OF APPEAL stated that " We cannot fault the conclusion of the judge of the high court that the conduct of the appellant was disruptive and made it impossible for the trial court to conduct the proceedings. The appellant’s right to be present during the trial was dependent on his conducting himself in a manner consistent with the sobriety of the trial. That being the position the appellant compromised his right to be present during the trial by failing to treat the trial proceedings with the reverence and seriousness that it deserved. He cannot therefore be allowed to leverage on an outcome brought about by his own misconduct to vilify the proceedings of the trial court."
33. In the present case I note that it is the conduct of the applicant that made his presence during the trial untenable.
He even absented himself from court and refused to come from he remand prison on several occasions and when he did turn up in court he would shout , bang tables and walk out.
34.The are about 6 magistrates who have handled the applicant the record shows that they have been extremely lenient to the applicant. There are numerous treatment orders and medical reports filed.
35.I have also noted that he was sent to a psychiatric evaluation and that he is not raising the defence of insanity .
36.He has never been unable to express himself and I have seen that he could object whenever he was unhappy.
He also wrote various memoranda to the court, so he is capable of expressing himself orally and in written form and the absence of an advocate he did not cause him any undue injustice.
The drafters of our constitution foresaw such a scenario such as this hence the proviso to Article 50 2 (f) of our constitution.
37.The complaint involved a minor and so much time has since passed and it would not be in their best interest to be recalled on the basis of the conduct of the accused person.
38. Accordingly, I find that there are no irregularities nor any illegality nor breach of constitutional or statutory right of the applicant.
39.The trial to go on.
40.The trial record be returned mentioned before the trial date on 9/7/2025
41.It is so ordered.
Dated signed and delivered this 25 th day of June 2025.
Wendy kagendo
JUDGE
IN THE PRESENCE OF :
THE APPLICANT AND HIS ADVOCATE MR TINDIKI
MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT
1. The Applicant filed the Notice of Motion Application under the provisions of Articles 50 and 165 (6) and (7) of the Constitution of Kenya 2010, and Section 362 and 364 of the Criminal Procedure Code and all other enabling provisions of the Law, and sought the following Orders:-.
1. Spent.
ii. THAT this Honourable court be pleased to FORTHWITH make an order Stay of the further Proceedings and/or the writing of the Ruling in Criminal Case Number S. O. 72 of 2016, Mombasa pending the hearing of this Application inter partes and further pending the hearing and determination of this Application.
ii. THAT this Honourable Court be pleased to FORTHWITH call for and examine the record of Criminal Case Number S. O. 72 of 2016, Mombasa, for the purpose of satisfying itself with the legality of all the proceedings therein and specifically Orders directing proceedings to continue in the absence of the Applicant.
4. THAT this Honourable Court be pleased to find and Order that the proceedings in Criminal Case Number S. O. 72 of 2016, Mombasa, wherein the Learned Magistrate Ordered that the Prosecution Witnesses testify in the absence of the Applicant, thus denying him an opportunity to cross-examine the said Witnesses, were in breach of the Applicant’s 2 Constitutional and Fundamental rights to a fair trial, thus set aside all the said proceedings and thus declare a mistrial.
5. THAT this Honourable Court do direct and order that Criminal Case Number S. O. 72 of 2016, Mombasa, be heard afresh and/or in the alternative, the all the Prosecution Witnesses who have testified in the said case be recalled for the purpose of cross-examination by the Applicant’s Advocates
. 6. THAT costs of this Application be provided for.
2. The said Application is supported by the Affidavit of HAMISI MOHAMED MWAROPIA sworn on the 28th July, 2024 and filed with the Application herein.
3. The gist of the Applicant’s Application is that the Applicant has been in remand at the Shimo La Tewa Maximum Prison since the years 2016, owing to the charges levelled against him in Criminal Case Number S. O. 72 of 2016, Mombasa.
4. Further, the Applicant is a man of limited knowledge and thus was not conversant with his fundamental rights, specifically a right to a fair trial. Further, due to the long period of being in remand, coupled with the Applicant’s mental challenges, the frustrations he has gone through will invite uncommon reactions from him, which would have appeared to be uncouth behaviours by the Trial Magistrate(s). all this time, the Applicant, who was facing serious Sexual offence case, was unrepresented.
5. Thereafter, the Advocates herein were instructed to offer pro-bono legal services to the Applicant. Thereafter, upon perusing the proceedings, in Criminal Case Number S. O. 72 of 2018, Mombasa, it dawned that the Trial Magistrate directed that the hearing of the case does proceed in the absence of the Applicant, which is in breach of his fundamental rights, specifically a right to a fair trial.
6. The Applicant’s Advocate then made an Application that the Prosecution Witnesses who had testified be recalled for the purpose of cross examination, but the said Application was also declined by the Trial Magistrate.
7. The Applicant thus submittted that due to the manner in which this matter has proceeded, the Applicant will not get a fair trial because the Prosecution case has been heard without his participation in any manner. This is because, despite keeping the Applicant away from the proceedings, the Trial Magistrate proceeded to hear all the Prosecution witnesses in the absence of the Applicant.
8. The Applicant’s position is that this Honourable Court has a constitutional responsibility to supervise the Subordinate Courts and satisfy itself with the proceedings thereof. Further, this matter is scheduled to proceed for the 3 hearing of the Defence case, and if the same does so proceed, the Applicant will be permanently barred from challenging the Prosecution evidence on record, since the same was not only heard in the absence of the Applicant, but also, no opportunity was accorded to him to cross-examine all the said Witnesses.
9. The right to a fair trial is a Constitutionally guaranteed right to every person as clearly provided for under Article 50 of the Constitution of Kenya, 2010, which provides:- Fair hearing 50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. (2) Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved; (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence; (d) to a public trial before a court established under this Constitution; (e) to have the trial begin and conclude without unreasonable delay; (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
10 The applicant submitted that despite the very clear provisions of the Constitution as replicated above, it is clear from the evidence and proceedings on record by the Trial Magistrate that there was obvious breach of the Applicant’s right aforesaid. This is because the Trial Magistrate made an order that the Prosecution case does proceed and its witnesses do test in the absence of the Applicant. In the premises, the Applicant had no opportunity to hear the evidence being tendered against him nor did he, at any point, cross examine the said Witnesses on their respective evidence.
11. In the case of Patriotic Guards Ltd v James Kipchirchir Sambu (Civil Appeal 20 of 2016) [2018] KECA 799 (KLR), with regard to the breach of the Constitutional right to a fair trial guaranteed under Article 50(1) of the Constitution of Kenya, 2010, the Court of Appeal held:- 4 The appellant has also contended that the judgment of the Court which directly affected it, was in breach, not only of the law, but also of the Constitution in so far as it condemned him without an opportunity to be heard and in breach of the right to a fair hearing guaranteed by Article 50(1). There is no need to restate the importance of a fair trial as guaranteed by the Constitution. The right to a fair trial remains at the heart of any judicial determination and courts should endeavor to protect and uphold the same. It is a cardinal rule and it emanates from the principle of natural justice.
In M K v M W M & another [2015] eKLR it was reiterated that; “The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. In ONYANGO V. ATTORNEY GENERAL (1986- 1989) EA 456, Nyarangi, JA asserted at page 459: “I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.” At page 460 the learned Judge added: “A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.” And in MBAKI & OTHERS V. MACHARIA & ANOTHER (2005) 2 EA 206, at page 210, this Court stated as follows: “The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.” In the circumstances of this case, there was no reason grave enough that would warrant the locking out of the appellant from pursuing its defence and counterclaim and allowing the trial to proceed to its logical conclusion. The interest of justice warrants this Court’s intervention
. 12. They urged that the manner in which the Trial Magistrate handled the matter is clear that the Applicant was contemned unheard, the effect thereof was that the Learned Magistrate failed to protect and uphold the Applicant’s right to a fair trial and thus abused the principle of natural justice. The Applicant was consequently not heard in the matter which he was likely to adversely affect him, and has consequently been adversely affected.
13. Their prayer was that the evidence tendered by the Prosecution Witnesses herein, in the absence of the Applicant, which was preceded by actions in breach of the Applicant’s right to upholding the rules of natural justice cannot be cured by holding that the decision would otherwise have been right. This is because the actions and Decision of the Trial Magistrate were in gross violation of principle of natural justice and the Applicant’s right to be heard, which thus both affected and prejudiced him without being afforded an opportunity to be heard.
14. The effect of the foregoing orders of the Trial Magistrate was that the Applicant’s constitutional and legal right to participate in the hearing of his Case coupled with the equal right to cross-examine the Prosecution Witnesses either by himself or through an Advocate duly appointed for the Applicant were trampled upon. The effect of failure to accord a party to cross examine Witnesses called by the opponent was addressed by the Supreme Court in the case of Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014 (Consolidated)) [2014] KESC 11 (KLR) 309. According to Tanford AJ, in The Trial Process: Law, Tactics and Ethics (2009) LexisNexis, 4th Ed. (page 283): “In civil cases, cross-examination is also a fundamental right. While a judge has more discretion to limit cross-examination in civil cases, the judge may do so only after a party has had a fair and substantial opportunity to exercise the right. The right of cross-examination encompasses not merely the right to ask questions, but also the right to elicit testimony. A witness can and should be compelled by the judge to answer proper questions. Continued refusal to answer may subject the witness to punishment for contempt. In extreme cases, where cross-examination is effectively denied, the court may strike out all or part of the direct examination or grant a mistrial — even if the denial of an opportunity for full cross-examination is no one’s fault. Whether the direct examination must be stricken because of the witness’s failure to submit to crossexamination is largely a discretionary decision for the trial judge. It depends not on whether the witness was justified in not answering, but on whether it is fair to permit the direct to stand unchallenged.” 310. It can, therefore, be accurately said that if a party is denied an opportunity to cross-examine a witness, a Court may strike out all or part of the evidence adduced during examination-inchief or declare the process a mistrial. The Court exercises its discretion in determining which of these two recourses it will have based on whether it would be fair to allow the testimony of that witness to remain unchallenged. 311. Miller M, in his article “Completed cross-examination - A prerequisite for a fair trial?" DR, November 2013:28 [2013] De Rebus 220 which discusses at length the right to cross-examine a witness as a pre- requisite for a fair trial, propounds particularly in respect of incomplete cross-examination that: 6 “A party has a right to adduce and challenge evidence. It is unknown what the result of a complete cross-examination may have been or how it may have affected the outcome of the case. Whether it is because of the right of an accused person to adduce and challenge evidence in terms of s 35(3)(i) of the Constitution, or the right of a litigant in a civil case to a fair public hearing in terms of s 34 of the Constitution or whether it is because of the audi alteram partem rule, a party has the right to be afforded an opportunity to complete cross-examination of a witness called by the other party whose evidence is prejudicial or potentially prejudicial to him or her. Without that it cannot be said that there was a fair trial. It follows from this that there can be no discretion to admit such evidence and that its exclusion has nothing to do with the probative value thereof. It is a guaranteed right. I am of the opinion that where cross-examination has not been completed such evidence should simply be excluded and treated as inadmissible and pro non scripto.”
15. The applicant also argued that flowing from the foregoing Decision of the Supreme Court, since the Applicant was denied both the right to be present when the Prosecution Witnesses testified, hear their evidence against him, as well as cross examining the said Witnesses, then there cannot be said at all to have been a fair trial in the matter at hand. The consequence therefore should be that the Applicant ought to be accorded to cross examine the Prosecution Witnesses who have testified in this matter, by having the Prosecution Case being opened.
16. Lastly, it was submitted that the Trial Magistrate ought to have appreciated that the Applicant was acting in person and failed to notify the Applicant of his Constitutional right, either to be represented by an Advocate of his choice or to have one hired for him by the State as expressly provided under Article 50(1)(g) and (h):- (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
17That emerging from the manner in which the proceedings in this matter were conducted, it was clear and/or obvious from the outset that substantial injustice will result to the Applicant; consequently, it was incumbent upon the Trial Magistrate to invoke the provisions of Article 50(1)(h) and make an order for an Advocate to be assigned to the Applicant by the State and at State expense. This was not done, in further breach of the Applicant’s guaranteed Constitutional right to be informed of the need to have an Advocate represent him and where he could not afford, have the State pay for the said legal Counsel. This is because of the nature of the case the Accused is facing in this matter.
18. The position of an unrepresented litigant was appreciated by the Constitutional Court in the case of Joseph Kaberia Kahinga & Others v Attorney General (Petition 618 of 2010) [2016] KEHC 3130 (KLR), wherein it was held, inter alia:- After due consideration of the matter as to whether courts have discretion in meting out any other forms of sentences in respect of capital offences and our understanding of the above authorities (Edwin Otieno Odhiambo, Godfrey Ngotho Mutiso and Joseph Njuguna Mwaura, (supra), and also in light of the interpretation that we have given to our mandate, we are of the view that although it may appear that Kenyan courts have no discretion to consider mitigation in the case where an accused person is convicted of a capital offence, however, we hold that it is a constitutional requirement for such an accused person to be granted an opportunity to present his mitigating circumstances before sentencing. This is because Article 50(2) of the Constitution sets out some of the principles that are considered to constitute fair trial. One of these principles is the right to lodge an appeal or apply for review in a higher court, if convicted (see Article 50 (2) (q)). Such mitigation will enable a court hearing the appeal to have a holistic view of the case, and in the event that the appellate court decides to alter the conviction from a capital offence to any other offence, it will have all the facts and circumstances of the accused on record to enable it assess the appropriate sentence for the reduced offence. Further, some mitigating circumstances may disclose certain facts that materially affect the finding made by the court to such an extent that it may result in the court arriving at a different decision. For instance, it is not unknown that many of the criminal charges brought before the courts relate to some form or other of land disputes. There can be circumstances where the trial court does not take into account such underlying circumstances. It may also be that the accused suffers from some form of mental illness which may not have been apparent during the trial. This court is not oblivious of the fact that in the majority of criminal trials especially before the magistrates’ courts, accused persons are not represented and may not be aware of their rights and due procedure of the court. Such circumstances may sometimes be brought out during mitigation of sentence. If such an accused person is denied a chance to mitigate the sentence solely because he has been convicted of a capital offence, we are of the considered view that it will deny him his constitutional right to fair trial. 19. Consequently, the Trial Magistrate was under Constitutional and Legal obligation to establish the mental capacity of the Applicant to stand trial and/or satisfy herself that the Applicant had such mental capacity to stand trial, in the face of the proceedings before him, and before ordering the said proceedings to continue, and also ensure that there was no miscarriage of justice to the Applicant, which he failed to do.
20. I called for the file and went through the proceedings.
21. I note that the applicant started raising issues as early as 2016 when he said he had a skin condition and the court ordered that he be taken to the coast general hospital for treatment.
22. Even on 2/12/2016- another order was for treatment was given. On 16/12/2016, it was reported that he did not receive treatment as he had abused the doctor.
23.Subsequently the matter was adjourned severally on accounts of the absence of witnesses.
24.The applicant objected to those adjournments, and the state was given a last adjournment.
All these proceedings were before Hon. F. Kyambia.
24. On 1/3/2018 the prosecutor indicated that he had 3 witnesses, but the applicant stated that he was not ready to proceed until the 2 persons who were found in the bar are made into witnesses.
25.Subsequently on 22/2/2019 before Hon. H. Nyakweba the applicant stated that he was arrested with Omar Kibwana and Ali Shaban who were then charged with the offence of being drunk and disorderly.
26.He therefore demanded that he be charged with the same offence or that the two be brought and charged with him. He then added that he would not be ready to proceed because the charges are fabricated.
27.After that the applicant declined to proceed with the case until the two were brought to court.
This is what led to the proceedings of 15/7/2019.
He walked away.
29.Subsequently 4/9/2022 he walked away banged tables leading the court to find him guilty of being in contempt of the court.
The same pattern was repeated on 30/11/2019 and 27/11/2019 when the trial court then Hon. Adet sent the file to the chief magistrate for directions after noting that:
"This was a serious offence, and she would not want to proceed in his absence despite the drama he exhibited."
30. When the file was taken before Chief magistrate HON E Nyaloti , for directions before ON 28/11/2019, she stated that:
"I have read through the court’s records. I have noted that the accused person is full of drama and is deliberately delaying the hearing of this case. The accused is informed that it is in his best interests and the interest of the victims for the trial to be continued expeditiously. The accused is warned that the case will proceed in his absence if he continues with the unnecessary drama. The file is reallocated to court No 8 for hearing."
31. On 4/12/19 HON nyabera sent it back T o HON ADET.
32. On 2/1/2020 HON ADET stated:
"In view of the accused behaviour (making noise, shouting sometimes leaving the court room) the matter shall move forward, his absence notwithstanding".
32.This history is also captured in the ruling delivered by HON David odhiambo in which he cited the decisions by both the high court and the court of appeal in Daniel Karuma alias NJALUO.
THE COURT OF APPEAL stated that " We cannot fault the conclusion of the judge of the high court that the conduct of the appellant was disruptive and made it impossible for the trial court to conduct the proceedings. The appellant’s right to be present during the trial was dependent on his conducting himself in a manner consistent with the sobriety of the trial. That being the position the appellant compromised his right to be present during the trial by failing to treat the trial proceedings with the reverence and seriousness that it deserved. He cannot therefore be allowed to leverage on an outcome brought about by his own misconduct to vilify the proceedings of the trial court."
33. In the present case I note that it is the conduct of the applicant that made his presence during the trial untenable.
He even absented himself from court and refused to come from he remand prison on several occasions and when he did turn up in court he would shout , bang tables and walk out.
34.The are about 6 magistrates who have handled the applicant the record shows that they have been extremely lenient to the applicant. There are numerous treatment orders and medical reports filed.
35.I have also noted that he was sent to a psychiatric evaluation and that he is not raising the defence of insanity .
36.He has never been unable to express himself and I have seen that he could object whenever he was unhappy.
He also wrote various memoranda to the court, so he is capable of expressing himself orally and in written form and the absence of an advocate he did not cause him any undue injustice.
The drafters of our constitution foresaw such a scenario such as this hence the proviso to Article 50 2 (f) of our constitution.
37.The complaint involved a minor and so much time has since passed and it would not be in their best interest to be recalled on the basis of the conduct of the accused person.
38. Accordingly, I find that there are no irregularities nor any illegality nor breach of constitutional or statutory right of the applicant.
39.The trial to go on.
40.The trial record be returned mentioned before the trial date on 9/7/2025
41.It is so ordered.
Dated signed and delivered this 25 th day of June 2025.
Wendy kagendo
JUDGE
IN THE PRESENCE OF :
THE APPLICANT AND HIS ADVOCATE MR TINDIKI
MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT