Paresh Shivji Jadva Varsani AND Shivji Jadva Parbat Varsani AND 1 Others VS ODPP

1. The application herein dated 11/4/2024 is for an order for revision of the learned trial magistrate’s orders made on 3/4/2024 In Mombasa Magistrates Courts Criminal Case No. E1007 of 2021. The application is expressed to be filed under Article 165(6) & (7) of the Constitution of Kenya and sections 362-367 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The application prays for an order that this court calls for the record of proceedings in Mombasa Criminal Case No. E1007 of 2021 and makes an order allowing the recalling of Mr. Vinodkumar Laji for further cross-examination.
3. The grounds in support of the application appear on the face thereof and they are further expounded in the supporting affidavit sworn on 11/4/2024 and further affidavit sworn on 7/5/2024 by Muthuri Kinyua, learned counsel for the applicants who are the accused persons before the trial court.
4. The application is made pursuant to this court’s exercise of its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide as follows:

(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7). For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

1. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:

“call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court.”

1. The Court is not obliged to hear the parties on an application for revision but this court gave the respondent the opportunity to file a replying affidavit and all parties to file submissions. The respondent only filed a replying affidavit but no submissions.
2. The issue for determination by this court is the correctness, legality or propriety, of the decision of the learned trial magistrate of 14/3/2024 and also the regularity of the proceedings had before the trial court. I find no issue with the regularity of the proceedings and I must comment the learned trial magistrate for the manner she patiently took the lengthy submissions by learned counsels for the parties to eventually come to the decision that she did.
3. The issue, the subject of this application arose from the court’s decision in complying with Section 200 of the Criminal Procedure Code which provides in part that:

"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) …

b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummons the witnesses and recommence the trial.

1. Section 201 CPC also provides;

"(1) …

(2) The provisions of Section 200 of this Act shall apply mutatis mutandis to trials held in the High Court."

1. However, learned counsel for the applicants also brought in the issue of new evidence having come into the possession of the defence and therefore requiring further cross-examination of PW 1 and PW 2.
2. Section 200 CPC provides for the recall of witnesses where a judge or magistrate ceases to exercise jurisdiction for whatever reason before the case is finalized. Under section 200(3) the accused person has a right to demand that the succeeding magistrate or judge resummons and rehears any witness.
3. Besides section 200 CPC under which a witness may be recalled to testify afresh where there is a succeeding magistrate or judge other provisions of the law under which a witness who has already testified may be recalled for further testimony are under section 150 of the CPC and section 146(4) of the Evidence Act (Cap. 80) Laws of Kenya.
4. Section 150 of the Criminal Procedure Code provides that;

“A Court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:

Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.”

1. Section 146 (4) Evidence Act Cap 80 on its part provides;

“(4) 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 & re-examination respectively.”

1. Under section 150 CPC it is the prerogative of the court to recall or summon any witness if the evidence appears essential to the just decision of the case. Section 146 (4) of the Evidence Act on its part prescribes that the court should allow the recall and/or re-examination of witnesses.
2. The case before the trial court had proceeded substantially before the previous trial magistrate Hon. Ritah Amwayi (SRM) where six witnesses testified with the last of the witnesses being heard on 19/5/2022.
3. When the case came up on 31/8/2022 for directions on how to proceed upon the transfer of the previous magistrate, the learned prosecution counsel informed the court that they remained with the investigating officer to testify. The learned counsel for the complainant confirmed this position.
4. For various reasons, the case has not proceeded since then. Among them was an application by the accused persons before a different magistrates court to have this case consolidated with five others pending before other courts in Mombasa Magistrates Court which was disallowed, Another reason was an application before this court praying for similar and other orders which was also disallowed. The third reason was the absence of the 1^st accused person against whom a warrant of arrest is pending and the trial court has since directed that the case proceeds for hearing in his absence under Article 50(2)(f) of the Constitution.
5. The court then asked learned counsels for the parties to submit on compliance with section 200 CPC before issuing directions.
6. At that point learned counsel for the accused persons/the applicants herein applied for the recall of PW 1, Vinodkumar Raji and PW 2, a Registrar by the name of Anne Kanute for purposes of cross-examination for reasons that the defence had come into possession of some documents that were crucial to its case and which would not have been available to them even with exercise of due diligence at the time these two witnesses testified. Learned counsel for the applicants also informed the court that in view of that evidence the applicants had submitted to the DPP a letter requesting for a review of the decision to charge.
7. In response, the ODPP/Prosecution submitted before the trial court that no basis had been laid for recall of the witnesses and that the applicants had not tendered a copy of the alleged letter to the DPP before the court and that details of the alleged documents obtained and sought to be used to cross-examine the witnesses to be recalled had not been disclosed. They therefore prayed that the case proceeds for hearing from the point it had reached.
8. Learned counsel for the complainant also opposed the request to recall the two witnesses for cross-examination contending that this would delay the hearing and determination of the case as provided for under Article 50 of the Constitution. He submitted that the witness is in London and it will require a lot of resources to have him recalled. He submitted that the documents alluded to by the applicants herein had not been provided to court.
9. In a rejoinder, learned counsel for the applicants submitted that PW 1 could testify virtually and need not come to court physically. He submitted further that the new evidence that had come into the possession of the applicants was correspondence by the DPP to the DCI and correspondence by counsel for the complainants Mr. Oloo to the Registrar asking that the Registrar do certain things.
10. The court then made a ruling on the same date in terms that the court had to consider that the case had been in court for long and the possible toll on the memory of witnesses, their availability and the prejudice likely to be occasioned to both the prosecution and the defence and that the hearing of the case was at an advanced stage. That the court had to balance the rights of the accused person to a fair hearing and those of the victims. The learned trial magistrate then decided that in order to determine the issue of recalling the witnesses, the investigating officer would have to confirm to the court their availability at the next mention date. If they were confirmed to be available the court would issue witness summonses for them but if they are not available then the investigating officer had to support that assertion with an affidavit. He summarized it by decreeing that the witnesses shall be recalled subject to their availability being confirmed by the investigating officer and also whether they would attend the court virtually.
11. When the case came up next on 3/4/2024 the investigating officer Cpl Bernard Gikandi had sworn and filed an affidavit titled “Affidavit to oppose recalling of witnesses”. He deposed that all witnesses had testified except for the investigating officer.
12. He swore further that one of the witnesses sought to be recalled Vinodkumar Lalji resides outside the jurisdiction of the court and gave his address as London Nettledon Avenue Kettwblly-HA96 DR England and that efforts to reach him through the said address had been futile and therefore trying to reach him will further delay the hearing of the case.
13. Learned counsel for the prosecution and learned counsel for the complainant relying on the affidavit of the investigating officer submitted that the complainant was out of jurisdiction of the court and therefore not available for further cross-examination.
14. After lengthy submissions on the issue by the learned counsels, the trial court made a decision that as far as it was concerned, it had not made an order for recalling witnesses but that it had indicated that witnesses shall be recalled subject to the investigating officer confirming their availability. The investigating officer had confirmed that PW 1 was unavailable.
15. In the replying affidavit to the present application, the same investigating officer Cpl Bernard Gikandi deposes that the applicant has failed to state what documents they intend to rely on and when they got these new documents. He further deposes that in the absence of an affidavit attaching the said documents that the applicant relies upon to ask for the recall of PW 1 the same is without foundation.
16. Clearly, the investigating officer’s approach to the issue was wrong and the learned magistrate seems to have fallen into the same error. It was not for the investigating officer to go back to the arguments of whether or not the witnesses had to be recalled. His work was only to confirm their availability or not. Therefore, titling his affidavit as “Affidavit to oppose recalling of witnesses” was erroneous and clearly showed that he had no intention of assisting in bringing those witnesses back to court to testify yet the law as enunciated above provides very clearly that this is allowed.  
17. It is quite understandable that tracing witnesses can be a strenuous and complex exercise especially for those who are outside the jurisdiction of the court as PW 1 in the trial court. However, that does not negate the right of the accused person as provided under section 200 CPC as well as section 150 CPC and section 146(4) of the Evidence Act.
18. The learned trial magistrate said in his later ruling that he had not ordered for the recall of the witnesses earlier but that was an error because in fact he had said that “the witnesses shall be recalled” subject to their availability being confirmed by the investigating officer and also whether they would attend the court virtually. He therefore did not rule out the recall of the witnesses. What he ought to have confined himself to was whether the investigating officer had satisfied the court through his affidavit that the witnesses or nay of them were unavailable. I do not find that to have been done.
19. As submitted by learned counsel for the applicants, the investigating officer having established the physical address of PW 1 he did not explain the efforts he made to reach the witness in this era of communications technology through e-mail or mobile telephony. There is no indication that a witness summons served upon him would not have brought him to court. Summons to witnesses even outside the county are governed by law. There is no indication that any such summons were issued to PW 1 at his stated address.
20. I therefore find that the investigating officer, read, the prosecution in the trial court failed to explain in a satisfactory manner effort to make available the witness PW 1 whose contact address they readily have.
21. In the case before the trial court the succeeding magistrate took over the case before close of the prosecution case and in exercise of the rights under Section 200 CPC as well as section 146(4) of the Evidence Act, the defense applied for recall of PW 1 and PW 2 who had testified earlier. It is noteworthy that the prosecution did not offer any good reason to object to recall of PW 1 except indicating that there would be difficulty of making him available as he was out of the jurisdiction of the court and that it would be expensive to secure his ttendance.
22. I am persuaded to adopt the holding of the High Court in the case of Young Mule v Republic [2020] KEHC 4188 (KLR) where DK Kemei J stated;

“In this regard I find that the court is satisfied that that in order to accord justice to the applicant and having examined the trial court record, the trial court went into error in disallowing the application to recall the prosecution witnesses for cross examination. I have seen the need to recall the prosecution witnesses for cross examination. Recalling the prosecution witnesses for further cross examination does not amount to starting the case de novo. As the case is yet to be concluded a request for recall of witnesses by either the prosecution or defence should always be allowed to serve the interest of justice. There will be no prejudice caused to the prosecution if the witnesses are recalled for further cross examination as the prosecution counsel will have an opportunity to reexamine those witnesses if need be.”

1. Section 200 CPC is applicable when the prosecution case is not closed yet and that is why various alternatives are provided to safeguard the right to fair hearing of the Accused persons under Article 50 of Constitution. Section 150 CPC is applied by the trial court to call or recall witness(s) or production of any document(s) on its own motion in order to meet the ends of justice which is not the position here. Section 146(4) of the Evidence Act applies towards conduct of criminal proceedings right up to close of prosecution case and conduct of defense proceedings. All these provisions are meant to ensure that no relevant evidence is left out of a trial and therefore that parties, whether as accused persons or complainants access justice through a fair hearing process.
2. Consequently, this court finds that the learned trial magistrate fell in error by declining  to have PW 1 recalled for no apparent reason when in fact his address had been established by the prosecution and the defense was agreeable to have him testify by virtual means in which case, the issue of incurring high expenses for his attendance was not going to arise.
3. In the result I find merit in the application for revision by counsel for the applicants and the same is allowed. The order by the trial court dated 3/4/2024 is hereby set aside. It is directed that the witness PW 1 as well as PW 2 be recalled for further cross-examination either in the physical courtroom or virtually.
4. The trial court file is returned to the Lower Court for further proceedings therein. Mention before the trial court on 28/10/2024.
5. Orders accordingly. 

Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 22^nd day of October 2024

In the presence of: -

N/A for the applicants.

Ngiri for the respondent

Etropia - Court Assistant