(Being A REVISION OF THE ORDER by Hon. D.G ODHIAMBO (PM) IN CM’S COURT AT MOMBASA IN CR CASE S.O E1428 0F 2020 ISSUED ON 14TH APRIL 2024)
1.The genesis of the Application is that the Applicant was charged with an offence of defilement contrary to section 8(1) as read with section 8(2) of The Sexual Offences Act No. 3 of 2006 on 12th 0f October 2021 . The case against the Applicant commenced before the initial trial court and the state’s several witnesses testified . He was then transferred.
2. The matter was taken over by his predecessor . The defence made an application that PW3, PW4 AND PW5 be recalled for further cross examination. The said Application was allowed.
3.That new magistrate was also transferred and the current magistrate took over. The applicant’s position is that the order that PW3, PW4 AND PW5 prevailed until the order complained against was made. The current trial court after complying with section 200 of the CPC indicated that the trial would proceed from where the previous court had left . to them this was at the point of having the 3 witnessed recalled.
The Applicant states that instead of recalling the witnesses, they were shocked when the trial court delivered its ruling placing the accused person on his defence. That the trial court did not give any basis for this decision and hence their complaint that the order is un procedural.
4. The Respondent states that it s not mandatory to have the witnesses recalled.
5. Section 200(3) of the Criminal Procedure Code Provides that;-
“200. (1) Subject to subsection (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.
(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 reheard and the succeeding magistrate shall inform the accused person of that right”
6. There a wealth of authorities on this. Justice J . A MAKAU IN PETER ONYANGO ODONGO (2015)eKLR stated thus;
Section 200 (3) of the Criminal Procedure Code is intended in my view to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused of his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses to enable Court make a just decision.
7. It should be noted Section 200(3) of C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It should be noted it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.
8. Section 200 (3) of C.P.C. entrenches the accused rights to a fair trial as constituted under Article 50 (1) of the Constitution of Kenya 2010.
9. In the case of Ndegwa V. Republic [1985] KLR at 534 the Court of Appeal stated:-
“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”
10. In the case of R V. Wellington Lusiri [2014] eKLR the Court emphasized the need for succeeding Magistrate to continue with the proceedings under Section 200 by informing the accused of his rights. The judge said ;
. In my view Section 200 (3) of the Criminal Procedure Code protects the rights of the accused to a fair trial as guaranteed by the constitution under Article 5O. (2) of the constitution which states every accused person has the right to a fair trial, which includes other rights as set out thereunder. Section 200 (3) of CPC as couched or framed does not have any provision to protect the rights of the complainant. It is silent on the rights of the complainant.
12.The question therefore is do the silence on the rights of the complainant under Section 200 (3) CPC mean the complainant\\\'s rights are not protected$1 The succeeding Magistrate before determining the accused demand for retrial or recalling or re-summoning of any of the witnesses, in my view, as Section 200(3) is not mandatory for the accused demand to be granted or to be allowed, the succeeding Magistrate is not supposed to deal with Section 200 (3) of C.P.C. in isolation of several articles of the constitution dealing with the Bill of Rights as Section 200 (3) of CPC is not exhaustive in itself. The succeeding Magistrate is supposed to be guided by Article 27 (1) of the constitution, which states every person is equal before the law and has rights to equal protection and equal benefit of the law. This means the protection to fair trial is automatically granted to both the complainant and the accused. This means as I understand the said article, before final order is made on the accused demand in terms of section 200 (3) CPC the complainant should be afforded an opportunity to be heard on the application. A blatant granting of the application without hearing the complainant would in my view not only be against the rules of natural justice but would amount to a violation of the letter and the spirit of our constitution and would not be in the best interest of achieving a fair trial, If the complaint is completely overlooked on the issue.
11. In considering Section 200 (3) C.P.C. as regards the information given to the accused, the same information should be extended to the complainant in equal measure, Article 159 (2) (a) (b) and (d) of the constitution deals with justice to all irrespective of status, justice not being delayed and being administered without undue regard to procedural technicalities. That the accused and the complainant should get justice without delay and should be administered without undue regard to procedural technicalities. That the accused and the complainant are entitled to justice without procedural technicalities and discrimination.
12. The Court in determining an application under Section 200(3) of C.P.C. should comply with Article 28 of the constitution which provides every person has inherent dignity and the right to have that dignity respected and protected. Further under article 47(1) of The Constitution every person has the right to administrative actions that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 53 (d) of the constitution states every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and Article 53 (2) provides a child\\\'s best interest are of paramount importance in every matter concerning the child.
15. I have quoted at length from our constitution to demonstrate the deficiency that one can be faced with while dealing with section 200 (3) CPC in isolation of various relevant articles of the constitution. Further it should be borne in the mind of any judicial officer, that under Article 2 (1) of the constitution, the constitution is the supreme law of the Republic of Kenya and it binds all persons and all state organs at both level of government and that under Article 2(4) that any law, including customary law, that is inconsistent with that constitution is void to the extent of the inconsistency, and any act or omission in contravention of the constitution is invalid.
16. Having said so much about the purpose of Section 200 (3) C.P.C. and noting its purpose is to protect the rights of an accused person to a fair trial. Section 2003) CPC in my view needs to give the complainant the right to have his/her views heard before witnesses are either recalled or re-summoned. 17.I find in spite of the Section having several deficiencies in regard to the rights of the complainant and the same being not automatic for Court to re-summon or recall witnesses, or allow the matter to start de novo, after explaining the accused his rights, that Section 200 (3) of C.P.C. is not unconstitutional as the Court is obligated to apply several articles of the Constitution to ensure that both the complainant and the accused constitutional rights are not violated or infringed or breached nor does it violate article 50 of the Constitution of Kenya 2010..
17.In Ndegwa V. R (Supra) it was held that Section 200 (3) CPC should sparingly be applied. The application of Section 200 (3) C.P.C. in my view is commonly abused especially where the application is made with a view to defeat the ends of justices and specially where the accused knows the witnesses cannot be traced or are dead or the complainant cannot be traced or cannot get the witnesses without enormous expense or the application is made to cause witness have no faith with the court system and fail to turn up or where the case has been pending for long period without being determined, such applications for witnesses to be recalled in my view should not be granted specially where the accused has had the opportunity to cross-examine witnesses and specifically where the matter had been pending for a long time. This is because granting such an application, court may be acting contrary to article 47, 50 (2) (e) and 159 (2) (d) of the constitution which demands that justice shall not be delayed, and trial should be concluded without unreasonable delay and lastly every one has a right to administrative action that is expeditious, ..
18. Section 200 (3) of Criminal Procedure code provides where a succeeding Magistrate commences the hearing of proceedings where part of the evidence has been recorded by his predecessor, the accused person may demand that witnesses be re-summoned and reheard and the succeeding Magistrate shall inform the accused person of his right.
19. In this case the second trial court had given the order that the witnesses be recalled. after the charges had been amended as provided for under section 204 of the CPC. From the record and the response filled herein, the said witnesses are still available for further cross examination. There was no particular difficulty expressed in getting them.
20.The right to a fair trial is one of the non derogable rights and accordingly the reversal of to recall the said witnesses, the earlier order without any reason, appears to be irregular and un procedural .
21. Accordingly the court finds that the Application has merit and its allowed.
22.The order that PW3, PW4 AND PW5 SHOULD NOT recalled is set aside AND the ruling placing the APPLICANT ON HIS DEFENCE IS ALSO SET ASIDE AND THE PROSECUTION CASE REOPENED.
23. IT IS DIRECTED THAT THE SAID 3 WITNESSES: PW3, (BEBEDICT MBUVI MUSYOKA), PW4 (DENNIS PETER WAMUYE), AND PW5, (CHRISPINE OMONDI ) BE RECALLED FOR FURTHER CROSS EXAMINATION BY THE DEFENCE.
24.THE TRIAL RECORD BE RETURNED AND THE MATTER BE MENTIONED BEFORE THE CHIEF MAGISTRATE ON 14TH OCTOBER 2024 FOR REALLOCATION AND DIRECTIONS.
23.It is so ordered
Dated and signed and Delivered virtually this 26TH Day of SEPTEMBER 2024 _
WENDY KAGENDO
JUDGE
Delivered in the presence of;
THE ADVOCATE for the Applicant
Ms Maina for the state
Bebora court assistant