Introduction
The applicant herein peculiarly couched his application vide a letter from his advocates on record instituted by way of Certificate of Urgency dated 12 th June, 2024, under section 362 of the Criminal Procedure Code for purposes of revision.
The applicant called for this court to examine the correctness, legality and propriety of the proceedings and orders made on the 31 st January, 2024 and on 6 th June, 2024 in Shanzu S.O. E070 OF 2023 R vs Harry Ndenge Kinda by the trial magistrate, where the applicant was denied a chance to either recall and cross examine witness or to have the matter start de novo in contravention of Section 200 of the Criminal Procedure Code.
Applicant’s case
The applicant in his letter through his advocates states that the applicant was initially charged at Malindi Law Courts with the offence of sexual assault and other offences in the Sexual Offence Act, then registered as S.O No. E051 OF 2023, R vs HARRY NDENGE KINDA.
Consequently, the High Court sitting at Malindi ordered the transfer of the matter to Shanzu Law Courts thereby registered as Shanzu S.O. E070 OF 2023 R vs Harry Ndenge Kinda.
That, two (2) prosecution witnesses testified before Hon. N. Kariuki (PM) at Shanzu at which point the learned magistrate proceeded on transfer.
The matter was then taken over by Hon. Leah Juma (PM). On 31 st January, 2024 the matter came up before her whereby the applicant sought to have the matter start de novo, which request was denied.
Further, on 6 th June, 2024 the applicant applied to have the two(2) prosecution witnesses cross-examined, which similarly was denied.
The applicant thus believes that his rights were violated under Section 200 of the Criminal Procedure Code were violated on account that the mother to the victim, is allegedly an employee of the Judiciary, and therefore he ought to be forgiven for thinking that undue influence is being felt by the court.
The matter was further canvassed by way of written submissions, solely filed by the applicant, as the respondent failed to respond to the matter.
Written submissions
The applicant argued that he has the right to demand the recall and rehearsing of any witness as espoused in Bob Ayub “alias” Edward Gabriel Mbwana “alias” vs Republic, HCA CRA No. 106 of 2009, as the courts always indicate that where convenient starting de novo or recalling witnesses is the best in trial, that has started before a different judicial officer.
Further, in summary the applicant believes that the court is under duty re-hear the witnesses and decide on their credibility and demonstrate impartiality.
Analysis and determination
Before considering the merits of the somewhat application, I must posit my dissatisfaction in how the application was particularized, especially in acknowledgment that the applicant had the benefit of legal representation on record.
The casual couching of such a weighty matter by merely a letter, devoid of factual evidence through an affidavit sworn by the applicant or his legal representative, if need be, is unbecoming.
This notwithstanding, this court has the benefit of the trial court’s file and proceedings, thus any factual realities, if they be true, as addressed in the applicant’s letter are verifiable and ascertainable.
Further, this court hesitantly cedes to the dictates of Article 159 (2) (d) of the constitution which states that justice should be dispensed without undue regard to procedural technicalities. Nevertheless, this Court finds it worthwhile to reiterate that the reprieve under Article 159(2) (d) should not be construed as a panacea for all procedural shortfalls.
However, in noting the circumstances of the present matter, whereby the procession and conclusion of the trial suit has been curtailed by the present matter, it is only justiciable that this court forgives the procedural deficiencies and consider the matter on its merits.
I shall thus proceed to the merits of the instant matter.
Under Article 165 (6) & (7) of the Constitution, it entitles the High Court to call for the record of a subordinate Court and inferior Tribunals that indeed they have exercised their jurisdiction independently and impartially as established by Law. This approach also found its way into Section 362 of the Criminal Procedure Code which empowers the High Court to call for and examine the record of any criminal proceedings before any Magistrate Court or Tribunal for the sole purpose and objective of satisfying itself, as to its correctness, legality or propriety of any findings, order proceedings or sentence and or of any of the decision made by that Court or Tribunal.
As seen from Article 165 (6) & (7) of the Constitution and Section 362 of the Criminal Procedure Code the power conferred by the provisions are actually that of superintendence and supervisory of inferior Courts and Tribunals. There is no dispute therefore as to the jurisdiction of the Court to entertain the matter.
The issue before Court is the exercise of the trial court’s discretion under section 200(3) of the Criminal Procedure Code . The section provides as follows: -
“(1) Subject to sub-section (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—
(a)Deliver a judgment that has been written and signed but not delivered by his predecessor; or
(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.
(2)…
(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.
(4)....”
The applicant rightly cited the authority in Abdi Adan Mohamed v. Republic [2017] eKLR where the court of Appeal had this to say about the Application of section 200(3) of the Criminal procedure code :
“Section 200 therefore entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution .
It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts.
To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trial de novo, how far has the trial reached, 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. See Joseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R, (2009) KLR 409...”
The consideration to follow, is what are the circumstances herein? I have perused the trial court’s record. From the onset the applicant seeks this court’s examination of the trial court’s decision/orders allegedly made on two (2) distinct instances, the 31 st January, 2024 and on 6 th June, 2024, and thereby find as to its correctness, legality or propriety.
What is apparent to this court is that there exists glaring inconsistencies with regard to the said dates that the orders were issued. In fact, the applicant in his submissions, contrary to his statements in his “application” further convolutes the dates as he lists the pertinent dates as 31 st July, 2023 and 4 th June, 2024.
However, having considered the trial court proceedings, it is apparent that the impugned proceedings/determinations were delivered on 31 st July, 2023 and 31 st January, 2024, respectively, which dates shall abide herein.
The variation of the dates when the orders were issued utterly alters the realities of the present matter, specifically of the orders/ruling issued on 31 st July, 2023. Reason being, contrary to the applicant’s statements, the said decision and the issues raised thereto, were considered and a ruling delivered by the initial trial magistrate (Hon. N. Kariuki (PM)) and not the succeeding learned magistrate (Hon. Leah Juma (PM). It would follow that the provisions of Section 200 of the Criminal Procedure Code had not crystallized as at the time.
Nevertheless, I shall consider the same under this court’s statutory empowerment under Section 362 of the Criminal Procedure Code, but free from the dictates under Section 200 of the same Act.
For context, the applicant through his advocate sought to have the two (2) prosecution witnesses recalled for cross-examination on the pretext of ‘newly found information’ received by the advocate from the appellant, who at the time was in remand and his advocate allegedly could not readily access him.
The trial learned magistrate having considered the grounds, disallowed the application, where in summary she held that “ … the counsel for the accused was provided with the witness statements and trial documents in good time to allow for preparation for trial and conduct a thorough cross-examination. That, allegations his counsel was not allowed a pre-trial with accused in remand is wanting of evidence, and that a child’s best interests are paramount under Article 53(1), which the trial court ought to safeguard to prevent the re-traumatization of the child. Further, in any event the defence would have their day in court to ventilate their case.”
I have considered the proceedings at the trial court. For one, following the above decision the applicant was granted 14 days right of appeal, which for reasons best known to him failed to utilize. Nevertheless, the proceedings evidence that the applicant, through his counsel had the opportunity to cross-examined the two (2) prosecution witnesses, which they did in length.
In my view, the trial magistrate duly exercised her discretion upon consideration of the facts therein and rendered her determination. Following this court’s examination of the decision’s correctness, legality or propriety, I find no reason to impugn, vary or deviate from it. Be that as it may, as held hereinabove, I needlessly reiterate that proceedings and decision of 31 st July, 2023 by the initial trial-court does not fall within auspices of Section 200 of the CPC, and the applicant erred in anchoring the same upon it.
As to the proceedings and decision by the succeeding magistrate (Hon. Leah Juma (PM)) of 31 st January, 2024, directions were duly sought under Section 200 of the CPC, where the applicant, in person, sought to have the matter heard de novo. However, no grounds were proffered therein.
The prosecution opposed the application on grounds that the complainant minor was 6 years, and having undergone counselling, subjecting her to further interrogation would cause her turmoil. Further, that the accused was duly represented and advocate in the proceedings.
The succeeding learned magistrate, having considered the rival arguments, sided with the prosecution. It summarily noted that no grounds were raised to restart the matter de novo and being that the applicant was legally represented by counsel, the record shows that the two (2) prosecution witnesses were cross-examined. Further, it would not be in order to recall the minor and subject her to trial afresh.
Although the applicant states that he is entitled to the right to have the matter start afresh, section 200(3) does not give that suggestion; the only right bestowed upon him is the right to be informed that he may demand for recalling of the witnesses. The decision whether or not to recall those witnesses lies with the succeeding magistrate and obviously such decision will be made depending on the circumstances of each case. The provision does not obligate the succeeding magistrate to start the trial de novo.
I would in this regard adopt the opinion of the Court of Appeal in Malindi Criminal Appeal No. 57 of 2014, Joseph Kamora Maro versus Republic where the court held that:-
…To this extent we are in agreement with the learned judges of the High Court that “this provision does not oblige the succeeding magistrate to start denovo” but what is mandatory is to inform an accused person of his right under section 200(3) of the Criminal Procedure Code.
The point is, it is not in every case that the court will recall witnesses; it may be that such witnesses may not be available, or some considerable time has lapsed since they testified or that there may not be any prejudice caused either to the accused or the prosecution if the witnesses are not called or for any other reason that in the opinion of the trial court justifies the decision not to recall the witnesses. In this instance no prejudice has been proffered by the applicant.
Respectfully, I do not find any rights of the applicant that have been violated. The whole purpose of section 200 of the Criminal Procedure Code is to ensure a fair trial and if a decision is taken upon a correct interpretation of that particular provision but which may not be popular with the applicant, it does not thereby follow that the applicant has been denied his rights.
In the ultimate I do not find any merit in the instant application, and I hereby dismiss it. I direct that the original file be returned to the magistrates’ court for the trial to proceed from where it had reached.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…17 th ….day of…JULY..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)...................................
FOR THE RESPONDENT (S)…..……MR NGIRI……………
COURT ASSISTANT........BEBORA...................................
The applicant herein peculiarly couched his application vide a letter from his advocates on record instituted by way of Certificate of Urgency dated 12 th June, 2024, under section 362 of the Criminal Procedure Code for purposes of revision.
The applicant called for this court to examine the correctness, legality and propriety of the proceedings and orders made on the 31 st January, 2024 and on 6 th June, 2024 in Shanzu S.O. E070 OF 2023 R vs Harry Ndenge Kinda by the trial magistrate, where the applicant was denied a chance to either recall and cross examine witness or to have the matter start de novo in contravention of Section 200 of the Criminal Procedure Code.
Applicant’s case
The applicant in his letter through his advocates states that the applicant was initially charged at Malindi Law Courts with the offence of sexual assault and other offences in the Sexual Offence Act, then registered as S.O No. E051 OF 2023, R vs HARRY NDENGE KINDA.
Consequently, the High Court sitting at Malindi ordered the transfer of the matter to Shanzu Law Courts thereby registered as Shanzu S.O. E070 OF 2023 R vs Harry Ndenge Kinda.
That, two (2) prosecution witnesses testified before Hon. N. Kariuki (PM) at Shanzu at which point the learned magistrate proceeded on transfer.
The matter was then taken over by Hon. Leah Juma (PM). On 31 st January, 2024 the matter came up before her whereby the applicant sought to have the matter start de novo, which request was denied.
Further, on 6 th June, 2024 the applicant applied to have the two(2) prosecution witnesses cross-examined, which similarly was denied.
The applicant thus believes that his rights were violated under Section 200 of the Criminal Procedure Code were violated on account that the mother to the victim, is allegedly an employee of the Judiciary, and therefore he ought to be forgiven for thinking that undue influence is being felt by the court.
The matter was further canvassed by way of written submissions, solely filed by the applicant, as the respondent failed to respond to the matter.
Written submissions
The applicant argued that he has the right to demand the recall and rehearsing of any witness as espoused in Bob Ayub “alias” Edward Gabriel Mbwana “alias” vs Republic, HCA CRA No. 106 of 2009, as the courts always indicate that where convenient starting de novo or recalling witnesses is the best in trial, that has started before a different judicial officer.
Further, in summary the applicant believes that the court is under duty re-hear the witnesses and decide on their credibility and demonstrate impartiality.
Analysis and determination
Before considering the merits of the somewhat application, I must posit my dissatisfaction in how the application was particularized, especially in acknowledgment that the applicant had the benefit of legal representation on record.
The casual couching of such a weighty matter by merely a letter, devoid of factual evidence through an affidavit sworn by the applicant or his legal representative, if need be, is unbecoming.
This notwithstanding, this court has the benefit of the trial court’s file and proceedings, thus any factual realities, if they be true, as addressed in the applicant’s letter are verifiable and ascertainable.
Further, this court hesitantly cedes to the dictates of Article 159 (2) (d) of the constitution which states that justice should be dispensed without undue regard to procedural technicalities. Nevertheless, this Court finds it worthwhile to reiterate that the reprieve under Article 159(2) (d) should not be construed as a panacea for all procedural shortfalls.
However, in noting the circumstances of the present matter, whereby the procession and conclusion of the trial suit has been curtailed by the present matter, it is only justiciable that this court forgives the procedural deficiencies and consider the matter on its merits.
I shall thus proceed to the merits of the instant matter.
Under Article 165 (6) & (7) of the Constitution, it entitles the High Court to call for the record of a subordinate Court and inferior Tribunals that indeed they have exercised their jurisdiction independently and impartially as established by Law. This approach also found its way into Section 362 of the Criminal Procedure Code which empowers the High Court to call for and examine the record of any criminal proceedings before any Magistrate Court or Tribunal for the sole purpose and objective of satisfying itself, as to its correctness, legality or propriety of any findings, order proceedings or sentence and or of any of the decision made by that Court or Tribunal.
As seen from Article 165 (6) & (7) of the Constitution and Section 362 of the Criminal Procedure Code the power conferred by the provisions are actually that of superintendence and supervisory of inferior Courts and Tribunals. There is no dispute therefore as to the jurisdiction of the Court to entertain the matter.
The issue before Court is the exercise of the trial court’s discretion under section 200(3) of the Criminal Procedure Code . The section provides as follows: -
“(1) Subject to sub-section (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—
(a)Deliver a judgment that has been written and signed but not delivered by his predecessor; or
(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.
(2)…
(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.
(4)....”
The applicant rightly cited the authority in Abdi Adan Mohamed v. Republic [2017] eKLR where the court of Appeal had this to say about the Application of section 200(3) of the Criminal procedure code :
“Section 200 therefore entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution .
It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts.
To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trial de novo, how far has the trial reached, 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. See Joseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R, (2009) KLR 409...”
The consideration to follow, is what are the circumstances herein? I have perused the trial court’s record. From the onset the applicant seeks this court’s examination of the trial court’s decision/orders allegedly made on two (2) distinct instances, the 31 st January, 2024 and on 6 th June, 2024, and thereby find as to its correctness, legality or propriety.
What is apparent to this court is that there exists glaring inconsistencies with regard to the said dates that the orders were issued. In fact, the applicant in his submissions, contrary to his statements in his “application” further convolutes the dates as he lists the pertinent dates as 31 st July, 2023 and 4 th June, 2024.
However, having considered the trial court proceedings, it is apparent that the impugned proceedings/determinations were delivered on 31 st July, 2023 and 31 st January, 2024, respectively, which dates shall abide herein.
The variation of the dates when the orders were issued utterly alters the realities of the present matter, specifically of the orders/ruling issued on 31 st July, 2023. Reason being, contrary to the applicant’s statements, the said decision and the issues raised thereto, were considered and a ruling delivered by the initial trial magistrate (Hon. N. Kariuki (PM)) and not the succeeding learned magistrate (Hon. Leah Juma (PM). It would follow that the provisions of Section 200 of the Criminal Procedure Code had not crystallized as at the time.
Nevertheless, I shall consider the same under this court’s statutory empowerment under Section 362 of the Criminal Procedure Code, but free from the dictates under Section 200 of the same Act.
For context, the applicant through his advocate sought to have the two (2) prosecution witnesses recalled for cross-examination on the pretext of ‘newly found information’ received by the advocate from the appellant, who at the time was in remand and his advocate allegedly could not readily access him.
The trial learned magistrate having considered the grounds, disallowed the application, where in summary she held that “ … the counsel for the accused was provided with the witness statements and trial documents in good time to allow for preparation for trial and conduct a thorough cross-examination. That, allegations his counsel was not allowed a pre-trial with accused in remand is wanting of evidence, and that a child’s best interests are paramount under Article 53(1), which the trial court ought to safeguard to prevent the re-traumatization of the child. Further, in any event the defence would have their day in court to ventilate their case.”
I have considered the proceedings at the trial court. For one, following the above decision the applicant was granted 14 days right of appeal, which for reasons best known to him failed to utilize. Nevertheless, the proceedings evidence that the applicant, through his counsel had the opportunity to cross-examined the two (2) prosecution witnesses, which they did in length.
In my view, the trial magistrate duly exercised her discretion upon consideration of the facts therein and rendered her determination. Following this court’s examination of the decision’s correctness, legality or propriety, I find no reason to impugn, vary or deviate from it. Be that as it may, as held hereinabove, I needlessly reiterate that proceedings and decision of 31 st July, 2023 by the initial trial-court does not fall within auspices of Section 200 of the CPC, and the applicant erred in anchoring the same upon it.
As to the proceedings and decision by the succeeding magistrate (Hon. Leah Juma (PM)) of 31 st January, 2024, directions were duly sought under Section 200 of the CPC, where the applicant, in person, sought to have the matter heard de novo. However, no grounds were proffered therein.
The prosecution opposed the application on grounds that the complainant minor was 6 years, and having undergone counselling, subjecting her to further interrogation would cause her turmoil. Further, that the accused was duly represented and advocate in the proceedings.
The succeeding learned magistrate, having considered the rival arguments, sided with the prosecution. It summarily noted that no grounds were raised to restart the matter de novo and being that the applicant was legally represented by counsel, the record shows that the two (2) prosecution witnesses were cross-examined. Further, it would not be in order to recall the minor and subject her to trial afresh.
Although the applicant states that he is entitled to the right to have the matter start afresh, section 200(3) does not give that suggestion; the only right bestowed upon him is the right to be informed that he may demand for recalling of the witnesses. The decision whether or not to recall those witnesses lies with the succeeding magistrate and obviously such decision will be made depending on the circumstances of each case. The provision does not obligate the succeeding magistrate to start the trial de novo.
I would in this regard adopt the opinion of the Court of Appeal in Malindi Criminal Appeal No. 57 of 2014, Joseph Kamora Maro versus Republic where the court held that:-
…To this extent we are in agreement with the learned judges of the High Court that “this provision does not oblige the succeeding magistrate to start denovo” but what is mandatory is to inform an accused person of his right under section 200(3) of the Criminal Procedure Code.
The point is, it is not in every case that the court will recall witnesses; it may be that such witnesses may not be available, or some considerable time has lapsed since they testified or that there may not be any prejudice caused either to the accused or the prosecution if the witnesses are not called or for any other reason that in the opinion of the trial court justifies the decision not to recall the witnesses. In this instance no prejudice has been proffered by the applicant.
Respectfully, I do not find any rights of the applicant that have been violated. The whole purpose of section 200 of the Criminal Procedure Code is to ensure a fair trial and if a decision is taken upon a correct interpretation of that particular provision but which may not be popular with the applicant, it does not thereby follow that the applicant has been denied his rights.
In the ultimate I do not find any merit in the instant application, and I hereby dismiss it. I direct that the original file be returned to the magistrates’ court for the trial to proceed from where it had reached.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…17 th ….day of…JULY..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)...................................
FOR THE RESPONDENT (S)…..……MR NGIRI……………
COURT ASSISTANT........BEBORA...................................