1. Vide an application dated 22nd February 2023, the Applicant, the Director of Public Prosecution, sought to have this court exercise its revision powers under Section 362 and 364 of the Criminal Procedure Code by revising the ruling that the trial court made on 24th February 2022 in which it was ordered that the case against the Respondent would start afresh.
2. The Director of Public Prosecution, through Mr Hillary Isiaho, Prosecution Counsel, sought to have this court direct that the matter before the court below proceed from where it had reached “for the interest of expeditious dispensation of justice to all parties.”
3. The Revision application is opposed by the Respondent. Mr. Mtsumi, through his counsels, Mogaka Omwenga & Mabeya Advocates, filed a Replying Affidavit sworn on 22nd November 2023. His said advocates also filed written submissions dated 20th February 2024, through which they urged that the revision application had no merit and ought to be dismissed. Counsel submitted that under Section 200(3) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, an accused person has the right, when the trial court is unable to hear the matter further, to ask for a fresh hearing before the new trial court. In support of this contention, the court was referred to the decision of the High Court in Catherine Mueni Makau versus Republic [2012] eKLR.
4. The Respondent submitted that there was no compelling reason for the exercise of the revision jurisdiction on the grounds that:-
a. No reason or justification sufficient to warrant the denial of the Respondent’s right to seek a fresh trial had been given;
b. Although the complainant had died, the death took place before his testimony was taken. No prejudice would, therefore, be suffered if the trial started afresh;
c. The witness who had been taken out of the witness protection program could be taken back in under the said program; and
d. The police officers who were witnesses could be summoned again.
5. It was urged that a fresh trial would be consistent with Section 200 of the Criminal Procedure Code and would uphold the Accused person’s right to a fair trial under Article 50 (1) of the Constitution of Kenya.
6. This matter came up before me on November 16th, 22nd, and 29th and December 6th and 14th, 2023. On January 23rd 2024, I directed that the matter be canvassed by written submissions. On all the occasions the matter was before me, the Applicant never appeared.
7. Although the applicant never appeared to argue its application, I have nevertheless considered the Revision Application and the written submissions in opposition thereto.
8. In my view, the application has no merit. It would appear to me that Section 200 (3) of the Criminal Procedure Code gives the Accused Person the right to choose whether the trial should start de novo or not. The reason for the said election was given by the Court of Appeal in Abdi Adan Mohamed Versus Republic [2017] eKLR. The said court expressed itself as follows:-
“The re-summoning of a witness or witnesses is and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence”.
9. Clearly, the requirement is founded on sound legal and public policy principles. Thus, a party that seeks to deny an accused person that right has a very difficult, almost impossible, task. The Applicant failed in the said duty, and its application must therefore fail.
10. I am guided by the decision of the High Court in Catherine Mueni Makau versus Republic (supra) where it was held that:-
“The complainant faults the order by the subordinate court that the case starts afresh, though it had reached the stage of defence hearing. Such an order is not, in my view, illegal, incorrect or irregular. Nor can it be said that it lacks propriety. It is perfectly legal. Indeed, section 200(3), under which the learned magistrate acted in making the order for the case to commence de novo, enjoins the trial magistrate taking over a partly heard criminal case to strictly comply with the provision which is in terms that:-
“200(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.”
This provision has been given a liberal interpretation to mean that it is entirely up to the accused to chart the way forward of his case where it is taken over by another magistrate. He may elect to have the case commence de novo or proceed from where the previous magistrate left. Therefore, the decision whether to proceed from where the previous magistrate left does not lie with the magistrate. It is with the accused. The incoming magistrate has no discretion or choice in the matter. The provisions are couched in mandatory terms.”
11. The upshot of the foregoing is that the application has no merit. The same is hereby dismissed.
12. Orders accordingly
Dated and signed at Mombasa this 11th day of March 2024.
2. The Director of Public Prosecution, through Mr Hillary Isiaho, Prosecution Counsel, sought to have this court direct that the matter before the court below proceed from where it had reached “for the interest of expeditious dispensation of justice to all parties.”
3. The Revision application is opposed by the Respondent. Mr. Mtsumi, through his counsels, Mogaka Omwenga & Mabeya Advocates, filed a Replying Affidavit sworn on 22nd November 2023. His said advocates also filed written submissions dated 20th February 2024, through which they urged that the revision application had no merit and ought to be dismissed. Counsel submitted that under Section 200(3) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, an accused person has the right, when the trial court is unable to hear the matter further, to ask for a fresh hearing before the new trial court. In support of this contention, the court was referred to the decision of the High Court in Catherine Mueni Makau versus Republic [2012] eKLR.
4. The Respondent submitted that there was no compelling reason for the exercise of the revision jurisdiction on the grounds that:-
a. No reason or justification sufficient to warrant the denial of the Respondent’s right to seek a fresh trial had been given;
b. Although the complainant had died, the death took place before his testimony was taken. No prejudice would, therefore, be suffered if the trial started afresh;
c. The witness who had been taken out of the witness protection program could be taken back in under the said program; and
d. The police officers who were witnesses could be summoned again.
5. It was urged that a fresh trial would be consistent with Section 200 of the Criminal Procedure Code and would uphold the Accused person’s right to a fair trial under Article 50 (1) of the Constitution of Kenya.
6. This matter came up before me on November 16th, 22nd, and 29th and December 6th and 14th, 2023. On January 23rd 2024, I directed that the matter be canvassed by written submissions. On all the occasions the matter was before me, the Applicant never appeared.
7. Although the applicant never appeared to argue its application, I have nevertheless considered the Revision Application and the written submissions in opposition thereto.
8. In my view, the application has no merit. It would appear to me that Section 200 (3) of the Criminal Procedure Code gives the Accused Person the right to choose whether the trial should start de novo or not. The reason for the said election was given by the Court of Appeal in Abdi Adan Mohamed Versus Republic [2017] eKLR. The said court expressed itself as follows:-
“The re-summoning of a witness or witnesses is and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence”.
9. Clearly, the requirement is founded on sound legal and public policy principles. Thus, a party that seeks to deny an accused person that right has a very difficult, almost impossible, task. The Applicant failed in the said duty, and its application must therefore fail.
10. I am guided by the decision of the High Court in Catherine Mueni Makau versus Republic (supra) where it was held that:-
“The complainant faults the order by the subordinate court that the case starts afresh, though it had reached the stage of defence hearing. Such an order is not, in my view, illegal, incorrect or irregular. Nor can it be said that it lacks propriety. It is perfectly legal. Indeed, section 200(3), under which the learned magistrate acted in making the order for the case to commence de novo, enjoins the trial magistrate taking over a partly heard criminal case to strictly comply with the provision which is in terms that:-
“200(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.”
This provision has been given a liberal interpretation to mean that it is entirely up to the accused to chart the way forward of his case where it is taken over by another magistrate. He may elect to have the case commence de novo or proceed from where the previous magistrate left. Therefore, the decision whether to proceed from where the previous magistrate left does not lie with the magistrate. It is with the accused. The incoming magistrate has no discretion or choice in the matter. The provisions are couched in mandatory terms.”
11. The upshot of the foregoing is that the application has no merit. The same is hereby dismissed.
12. Orders accordingly
Dated and signed at Mombasa this 11th day of March 2024.