Background.
1. In the Notice of Motion application dated 19th January 2026, the Applicant herein sought for the following orders: -
i. Spent
ii. Spent
iii. That the court do set aside the ruling of the trial court dated 27th October 2025 and order that the complainant be recalled to testify afresh in Ngong Criminal Case No. E956 of 2023, Republic vs Joshua Maraka.
iv. Costs be in the cause.
2. The Applicant swore an affidavit in support of the said application and averred that he was charged with assault causing bodily harm and on 28th August 2025, the trial court found that he had a case to answer and he was placed on his defence. On 27th October 2025, his advocate made an application to recall the complainant since he was unrepresented during the prosecution’s case. He averred that his application was declined on account that it was a delay tactic since he was aware of his right to appoint a counsel.
3. He pointed out that his then counsel only appeared in court once and later relocated to Eldoret and he was unable to appoint another counsel since he could not afford legal fees. He stated that the current advocate took over the matter on pro bono basis. He further stated that he never informed the trial court that he had waived his right to be represented by a counsel and he should not be denied his right to be represented due to his indigent status.
4. He averred that he had fresh information which he intended to raise during cross examination through his counsel and that unless the orders sought were granted, his right to fair trial would be prejudiced.
5. In response, the Respondent filed grounds of opposition dated 17th June 2026. It is their argument that this court was being invited to interfere with the trial court’s discretion in absence of any illegality, impropriety, incorrectness or irregularity as provided under Sections 362 and 364 of the Criminal Procedure Code. Further, the Applicant failed to demonstrate any error of law, procedural impropriety or miscarriage of justice arising from the trial court’s ruling.
6. The Respondent pointed out that the Trial Court exercised its discretion properly by considering the age of the case, the stage of the proceedings and the reasons that were advanced by the Applicant. It was emphatic that there would be delay which will prejudice the prosecution and undermine the principle of expeditious disposal of criminal proceedings. It urged the court to dismiss the application.
7. The parties’ written submissions are dated 1st July 2026. The Ruling herein is based on the said written submissions which both parties relied upon in their entirety.
8. This court on 18th June 2026 gave interim orders staying the proceedings in Ngong Criminal Case No. E956 of 2023 Republic vs Joshua Maraka, pending determination of this application.
Applicant’s submissions.
9. The Applicant invoked Section 150 of the Criminal procedure Code, Section 146(4) of the Evidence Act and Article 50(2) of the Constitution. He pointed out that a court had discretion which was mandatory under Section 150 of the Criminal Procedure Code to recall a witness when the witness’s evidence was essential to reaching a just decision. He cited Kamlesh Mansukhal Pattni vs Republic (2012) eKLR and Republic vs Kipkoech Cheruiyot [2018] eKLR where courts stated that the said section was meant to ensure justice was done.
10. He submitted that he intended the complainant to be cross examined by his counsel on the basis that he was unrepresented when the complainant testified and there were matters that were unverified. He also stated that Article 50(2)(j) of the Constitution guaranteed every accused person right to challenge evidence and he placed reliance on the case of Joseph Mwangi Ndungu vs Republic [2014] eKLR where the court stated that right to fair trial included the right to fully cross examine witnesses. He also cited Pett vs Greyhound Racing Association (1968) 2 All E.R 545 where the importance of representation by a counsel was emphasised.
11. He submitted that he was to be greatly prejudiced if the order sought was declined and a massive gap in the defence’s case was to be left unanswered. He was emphatic that the prosecution would not be prejudiced as it retained the right to re-examination.
Respondent’s submissions.
12. The Respondent reiterated the averments in its grounds of opposition and further submitted that the Applicant failed to identify any ambiguity, inconsistency or omission in the complainant’s testimony that required clarification nor did he point out the matter that was to be addressed through the recall of the complainant.
13. It submitted that no violation of right was established and it referred to the case of David Njoroge Macharia vs Republic [2011] KECA 406, where the court stated that legal representation was not always required in criminal proceedings. It pointed out that the Applicant actively participated in the proceedings and he failed to show that he was denied an opportunity to cross examine witnesses, he was prevented from participating in the proceedings, he requested for legal representation and was denied and that he was denied access to court process.
14. It is the state’s submission that the application to reopen the case is a delay tactic as was properly held by the trial court since the charge was instituted in August 2023 and the complainant testified on 14th November 2024. It maintained that reopening the case would undermine constitutional requirement of expeditious disposal of cases and occasioned prejudice to the complainant and to administration of justice.
15. The Respondent pointed out that the Applicant sought for an order to set aside the ruling of the Trial Court dated 27th October 2025 and order that the complainant be recalled to testify afresh.
Analysis and Findings.
16. The jurisdiction of the High court is provided for under Article 165(3) of the Constitution and the Court has supervisory jurisdiction over subordinate courts donated by Article 165(6) of the Constitution.
17. The power of criminal revision of this court is provided for in sections 362 and 364 of the Criminal Procedure Code and the Applicant invoked this court’s power of revision on account that the Trial Court declined his application of reopening the prosecution’s case and recall the complainant to be cross examined by his advocate. He claimed that the was not represented during the prosecution’s case and his advocate who came on record after close of prosecution’s case wished to cross examine the complainant. He stated that there were matters that were unverified when the complainant testified.
18. Notably, full proceedings of the Trial Court were not attached, Applicant only attached the part of the proceedings where his advocate made an application to recall the complainant. It is therefore impossible for this court to confirm the happenings complained of by the Applicant.
19. The Trial Court when declining to order for re-opening of the prosecution’s case stated that;
“…as much as the accused has a right to be represented, there are no sufficient reasons why he did not appoint an advocate to represent him from the start of the case. It is an old matter and the application is a delay tactic, the application is declined.”
20. The Trial Court in its ruling noted the age of the matter and the fact that the Applicant had no sufficient reasons as to why he failed to appoint an advocate from the start of the case.
21. Section 146(4) of the Evidence Act allows the recalling of a witness who had already testified. It provides: -
“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so the parties have the right of further cross-examination and re-examination respectively.”
22. That power is also enshrined in Section 150 of the Criminal Procedure Code and the use of the word “may”, in the Section means full discretion is given to a court to decide whether the recall is viable. This is dependent on the circumstances of each case. In the persuasive case of Samwel v Republic [2023] KEHC 25512 (KLR), the High Court held that: -
“In the circumstances of this case, I find that the applicant was given a chance to cross-examine the prosecution witnesses well within the law. The mere fact that he did not have an Advocate does not entitle him to re-open the prosecution case at this stage. I am of the view that the applicant has not shown that there is an order that is incorrect, illegal or irregular which would require this Court to interfere with the proceedings before the Trial Court. The application ought to have been made at the trial court and as such an application at this forum is an afterthought. The application also needs be supported by noted shortfalls in the accused cross examination of witnesses sought to be recalled. The mere fact that he or she was not represented is not by itself sufficient reason to warrant recalling of the witnesses.”
23. The Applicant in his application has neither stated the fresh information he wants to out across to the Trial Court by way of cross examination of the complainant nor has he attached full proceedings of the Trial Court to enable this Court to see the happenings at the Trial Court.
24. Further, Article 50(2)(e) of the Constitution requires a trial to be initiated and be resolved without unreasonable delay that is to say the Court is required to consider both parties in considering an application to reopen a trial.
Disposition.
25. From the above analysis and findings, I find no merit in the application dated 19th January 2026. The same is dismissed with no order as to costs.
26. The Deputy Registrar is hereby directed to remit this Court’s finding to the trial court which shall proceed with the matter.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 21st day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mr. Kioko for the Applicant
Ms. Nyaga for the Respondent
Kendi – Court Assistant.
1. In the Notice of Motion application dated 19th January 2026, the Applicant herein sought for the following orders: -
i. Spent
ii. Spent
iii. That the court do set aside the ruling of the trial court dated 27th October 2025 and order that the complainant be recalled to testify afresh in Ngong Criminal Case No. E956 of 2023, Republic vs Joshua Maraka.
iv. Costs be in the cause.
2. The Applicant swore an affidavit in support of the said application and averred that he was charged with assault causing bodily harm and on 28th August 2025, the trial court found that he had a case to answer and he was placed on his defence. On 27th October 2025, his advocate made an application to recall the complainant since he was unrepresented during the prosecution’s case. He averred that his application was declined on account that it was a delay tactic since he was aware of his right to appoint a counsel.
3. He pointed out that his then counsel only appeared in court once and later relocated to Eldoret and he was unable to appoint another counsel since he could not afford legal fees. He stated that the current advocate took over the matter on pro bono basis. He further stated that he never informed the trial court that he had waived his right to be represented by a counsel and he should not be denied his right to be represented due to his indigent status.
4. He averred that he had fresh information which he intended to raise during cross examination through his counsel and that unless the orders sought were granted, his right to fair trial would be prejudiced.
5. In response, the Respondent filed grounds of opposition dated 17th June 2026. It is their argument that this court was being invited to interfere with the trial court’s discretion in absence of any illegality, impropriety, incorrectness or irregularity as provided under Sections 362 and 364 of the Criminal Procedure Code. Further, the Applicant failed to demonstrate any error of law, procedural impropriety or miscarriage of justice arising from the trial court’s ruling.
6. The Respondent pointed out that the Trial Court exercised its discretion properly by considering the age of the case, the stage of the proceedings and the reasons that were advanced by the Applicant. It was emphatic that there would be delay which will prejudice the prosecution and undermine the principle of expeditious disposal of criminal proceedings. It urged the court to dismiss the application.
7. The parties’ written submissions are dated 1st July 2026. The Ruling herein is based on the said written submissions which both parties relied upon in their entirety.
8. This court on 18th June 2026 gave interim orders staying the proceedings in Ngong Criminal Case No. E956 of 2023 Republic vs Joshua Maraka, pending determination of this application.
Applicant’s submissions.
9. The Applicant invoked Section 150 of the Criminal procedure Code, Section 146(4) of the Evidence Act and Article 50(2) of the Constitution. He pointed out that a court had discretion which was mandatory under Section 150 of the Criminal Procedure Code to recall a witness when the witness’s evidence was essential to reaching a just decision. He cited Kamlesh Mansukhal Pattni vs Republic (2012) eKLR and Republic vs Kipkoech Cheruiyot [2018] eKLR where courts stated that the said section was meant to ensure justice was done.
10. He submitted that he intended the complainant to be cross examined by his counsel on the basis that he was unrepresented when the complainant testified and there were matters that were unverified. He also stated that Article 50(2)(j) of the Constitution guaranteed every accused person right to challenge evidence and he placed reliance on the case of Joseph Mwangi Ndungu vs Republic [2014] eKLR where the court stated that right to fair trial included the right to fully cross examine witnesses. He also cited Pett vs Greyhound Racing Association (1968) 2 All E.R 545 where the importance of representation by a counsel was emphasised.
11. He submitted that he was to be greatly prejudiced if the order sought was declined and a massive gap in the defence’s case was to be left unanswered. He was emphatic that the prosecution would not be prejudiced as it retained the right to re-examination.
Respondent’s submissions.
12. The Respondent reiterated the averments in its grounds of opposition and further submitted that the Applicant failed to identify any ambiguity, inconsistency or omission in the complainant’s testimony that required clarification nor did he point out the matter that was to be addressed through the recall of the complainant.
13. It submitted that no violation of right was established and it referred to the case of David Njoroge Macharia vs Republic [2011] KECA 406, where the court stated that legal representation was not always required in criminal proceedings. It pointed out that the Applicant actively participated in the proceedings and he failed to show that he was denied an opportunity to cross examine witnesses, he was prevented from participating in the proceedings, he requested for legal representation and was denied and that he was denied access to court process.
14. It is the state’s submission that the application to reopen the case is a delay tactic as was properly held by the trial court since the charge was instituted in August 2023 and the complainant testified on 14th November 2024. It maintained that reopening the case would undermine constitutional requirement of expeditious disposal of cases and occasioned prejudice to the complainant and to administration of justice.
15. The Respondent pointed out that the Applicant sought for an order to set aside the ruling of the Trial Court dated 27th October 2025 and order that the complainant be recalled to testify afresh.
Analysis and Findings.
16. The jurisdiction of the High court is provided for under Article 165(3) of the Constitution and the Court has supervisory jurisdiction over subordinate courts donated by Article 165(6) of the Constitution.
17. The power of criminal revision of this court is provided for in sections 362 and 364 of the Criminal Procedure Code and the Applicant invoked this court’s power of revision on account that the Trial Court declined his application of reopening the prosecution’s case and recall the complainant to be cross examined by his advocate. He claimed that the was not represented during the prosecution’s case and his advocate who came on record after close of prosecution’s case wished to cross examine the complainant. He stated that there were matters that were unverified when the complainant testified.
18. Notably, full proceedings of the Trial Court were not attached, Applicant only attached the part of the proceedings where his advocate made an application to recall the complainant. It is therefore impossible for this court to confirm the happenings complained of by the Applicant.
19. The Trial Court when declining to order for re-opening of the prosecution’s case stated that;
“…as much as the accused has a right to be represented, there are no sufficient reasons why he did not appoint an advocate to represent him from the start of the case. It is an old matter and the application is a delay tactic, the application is declined.”
20. The Trial Court in its ruling noted the age of the matter and the fact that the Applicant had no sufficient reasons as to why he failed to appoint an advocate from the start of the case.
21. Section 146(4) of the Evidence Act allows the recalling of a witness who had already testified. It provides: -
“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so the parties have the right of further cross-examination and re-examination respectively.”
22. That power is also enshrined in Section 150 of the Criminal Procedure Code and the use of the word “may”, in the Section means full discretion is given to a court to decide whether the recall is viable. This is dependent on the circumstances of each case. In the persuasive case of Samwel v Republic [2023] KEHC 25512 (KLR), the High Court held that: -
“In the circumstances of this case, I find that the applicant was given a chance to cross-examine the prosecution witnesses well within the law. The mere fact that he did not have an Advocate does not entitle him to re-open the prosecution case at this stage. I am of the view that the applicant has not shown that there is an order that is incorrect, illegal or irregular which would require this Court to interfere with the proceedings before the Trial Court. The application ought to have been made at the trial court and as such an application at this forum is an afterthought. The application also needs be supported by noted shortfalls in the accused cross examination of witnesses sought to be recalled. The mere fact that he or she was not represented is not by itself sufficient reason to warrant recalling of the witnesses.”
23. The Applicant in his application has neither stated the fresh information he wants to out across to the Trial Court by way of cross examination of the complainant nor has he attached full proceedings of the Trial Court to enable this Court to see the happenings at the Trial Court.
24. Further, Article 50(2)(e) of the Constitution requires a trial to be initiated and be resolved without unreasonable delay that is to say the Court is required to consider both parties in considering an application to reopen a trial.
Disposition.
25. From the above analysis and findings, I find no merit in the application dated 19th January 2026. The same is dismissed with no order as to costs.
26. The Deputy Registrar is hereby directed to remit this Court’s finding to the trial court which shall proceed with the matter.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 21st day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mr. Kioko for the Applicant
Ms. Nyaga for the Respondent
Kendi – Court Assistant.