1. The accused persons in this matter were presented to the High court for trial vide a murder information dated 26 th July 2021 where they were alleged to have murdered on Edwin Wafula Okoth alias Misiani.
2. This court has so far heard a total of 3 witnesses the first witness having been called to testify on the 3 rd December 2025.
3. It is not clear to this court why the matter took so long to start but be that as it may this court has granted the prosecution adequate time since 3 rd December 2025 to avail all its witnesses but they have been unable to do so.
4. This court was informed by the officer currently handling this file from the DCI No. 54186 CPL DAVID MELI on 4 th may 2026 that he has been unable to reach the remaining witnesses and he pleaded for an opportunity to avail them today i.e the investigating officer IP Maingi who has appeared today and testified as PW3.
5. The officer had indicated that he had also bonded one by the name of Yassin Yunis Ahmed and he expected to have that witness appear together with IP Maingi to give evidence but the witness did not turn up.
6. The prosecution instead called another witness by the name Peter Mungai who gave evidence as PW2.
7. The prosecution sought an adjournment which the court declined to grant citing the protracted delay in the matter and the fact that the prosecution had placed on record information on its inability to proceed with the matter.
8. The prosecutor after this court ordered her to proceed, cunningly sought an adjournment for two weeks on the pretext that she intends to consult with her superiors on how to proceed.
9. The request for two weeks was not backed by any reason other than the need to consult and the court considered that the prosecution counsel is either least bothered with the fate of the accused or simply enjoys there continued stay in custody of the accused persons.
10. The prosecution counsel, Ms Dela did not tell the court why she had not consulted her superiors on the problem of witnesses since 4 th of May 2026 when this court unequivocally indicated that there would be no further room for procrastination in this matter.
11. The prosecutor has basically declined to discharge her duty to continue with the prosecution of the matter and the defense has urged the court to step in and order the prosecution case closed.
12. In People vs. Rhodes (1974) 12 Cal. 3d 180 , 185 [115 Cal. Rptr. 235, 524 P.2d 363] . the court; - " It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety ."
13. To adjourn a matter without the prospect of availing witnesses does not reflect very well on the prosecution team. It gives the impression that the concerned prosecutor is not sensitive to the expeditious disposal of cases and the need to protect the rights of the accused persons for the job of the prosecutor is not to secure convictions but do justice to all.
14. The prosecution by seeking an adjournment having said they cannot get their witnesses are acting in a manner that does not instill public confidence in our judicial processes and the same does not align well with the prosecution’s duty under Article 157(11) of the Constitution.
15. The court must not be held at a ransom by a prosecutor who is reluctant to close her case and cannot at the same time avail witnesses for the trial to continue. As an officer of the court the prosecution counsel must assist the court to deliver justice impartially and expeditiously.
16. The machinery of justice should not be used to punish individuals through prolonged unexplained delays. The prosecution cannot fail to avail witnesses and urge the court to adjourn the matter whimsically.
17. The adjournment of a case involves the exercise of discretion by the court under Section 205 of the Criminal Procedure Code. The exercise of discretion must be judicious and an adjournment should not be without a reasonable basis. None has been offered by the prosecution and thus the court cannot simply adjourn the matter for two weeks to allow counsel to consult.
18. The matter has a further hearing tomorrow 12 th May 2026 and since counsel did not explain why she needed two weeks knowing that we have a hearing tomorrow, this court shall proceed with the matter as scheduled tomorrow 12 th May 2026. The rights of accused persons must be respected by all.
19. In Republic v Ndiba & 2 others (Criminal Revision E185 of 2022) [2023] KEHC 17486 (KLR) (11 May 2023) (Ruling) Neutral citation: [2023] KEHC 1748 6 (KLR) Hon Mr. Justice P. Mulwa held in an application where the prosecution sought to challenge the closure of a case by the court; - “Therefore, a case cannot be adjourned endlessly and especially if the party mandated to prosecute the same is not keen to do so, and without any reasonable justification. The exercise of discretion by the court to expedite litigation cannot amount to incorrectness, illegality or impropriety on the part of the trial court so as to warrant this court exercising its revisionary powers to disturb the decision. In this case there was no reason placed before the trial court which would have compelled it to adjourn the proceedings further. It is therefore my view that the learned trial magistrate was perfectly entitled to proceed in the manner he did and even if this court would have proceeded differently that does not warrant interference by way of revision.’’
20. This court therefore is not inclined to vacate the date of 12 th May 2026 that was granted on the 26 th Feb 2026. If the prosecution cannot find their witnesses the prosecutor should be able to exercise her power under the law and do the needful and several options exist under Article 157 of the Constitution and Sections 82 and 87 of the Criminal Procedure Code.
21. The prosecutor may as well elect what to do with the matter when the hearing resumes tomorrow at 10.00am.
22. Further Hearing on 12 th May 2026 at 10.00am.
23. It is so ordered.
2. This court has so far heard a total of 3 witnesses the first witness having been called to testify on the 3 rd December 2025.
3. It is not clear to this court why the matter took so long to start but be that as it may this court has granted the prosecution adequate time since 3 rd December 2025 to avail all its witnesses but they have been unable to do so.
4. This court was informed by the officer currently handling this file from the DCI No. 54186 CPL DAVID MELI on 4 th may 2026 that he has been unable to reach the remaining witnesses and he pleaded for an opportunity to avail them today i.e the investigating officer IP Maingi who has appeared today and testified as PW3.
5. The officer had indicated that he had also bonded one by the name of Yassin Yunis Ahmed and he expected to have that witness appear together with IP Maingi to give evidence but the witness did not turn up.
6. The prosecution instead called another witness by the name Peter Mungai who gave evidence as PW2.
7. The prosecution sought an adjournment which the court declined to grant citing the protracted delay in the matter and the fact that the prosecution had placed on record information on its inability to proceed with the matter.
8. The prosecutor after this court ordered her to proceed, cunningly sought an adjournment for two weeks on the pretext that she intends to consult with her superiors on how to proceed.
9. The request for two weeks was not backed by any reason other than the need to consult and the court considered that the prosecution counsel is either least bothered with the fate of the accused or simply enjoys there continued stay in custody of the accused persons.
10. The prosecution counsel, Ms Dela did not tell the court why she had not consulted her superiors on the problem of witnesses since 4 th of May 2026 when this court unequivocally indicated that there would be no further room for procrastination in this matter.
11. The prosecutor has basically declined to discharge her duty to continue with the prosecution of the matter and the defense has urged the court to step in and order the prosecution case closed.
12. In People vs. Rhodes (1974) 12 Cal. 3d 180 , 185 [115 Cal. Rptr. 235, 524 P.2d 363] . the court; - " It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety ."
13. To adjourn a matter without the prospect of availing witnesses does not reflect very well on the prosecution team. It gives the impression that the concerned prosecutor is not sensitive to the expeditious disposal of cases and the need to protect the rights of the accused persons for the job of the prosecutor is not to secure convictions but do justice to all.
14. The prosecution by seeking an adjournment having said they cannot get their witnesses are acting in a manner that does not instill public confidence in our judicial processes and the same does not align well with the prosecution’s duty under Article 157(11) of the Constitution.
15. The court must not be held at a ransom by a prosecutor who is reluctant to close her case and cannot at the same time avail witnesses for the trial to continue. As an officer of the court the prosecution counsel must assist the court to deliver justice impartially and expeditiously.
16. The machinery of justice should not be used to punish individuals through prolonged unexplained delays. The prosecution cannot fail to avail witnesses and urge the court to adjourn the matter whimsically.
17. The adjournment of a case involves the exercise of discretion by the court under Section 205 of the Criminal Procedure Code. The exercise of discretion must be judicious and an adjournment should not be without a reasonable basis. None has been offered by the prosecution and thus the court cannot simply adjourn the matter for two weeks to allow counsel to consult.
18. The matter has a further hearing tomorrow 12 th May 2026 and since counsel did not explain why she needed two weeks knowing that we have a hearing tomorrow, this court shall proceed with the matter as scheduled tomorrow 12 th May 2026. The rights of accused persons must be respected by all.
19. In Republic v Ndiba & 2 others (Criminal Revision E185 of 2022) [2023] KEHC 17486 (KLR) (11 May 2023) (Ruling) Neutral citation: [2023] KEHC 1748 6 (KLR) Hon Mr. Justice P. Mulwa held in an application where the prosecution sought to challenge the closure of a case by the court; - “Therefore, a case cannot be adjourned endlessly and especially if the party mandated to prosecute the same is not keen to do so, and without any reasonable justification. The exercise of discretion by the court to expedite litigation cannot amount to incorrectness, illegality or impropriety on the part of the trial court so as to warrant this court exercising its revisionary powers to disturb the decision. In this case there was no reason placed before the trial court which would have compelled it to adjourn the proceedings further. It is therefore my view that the learned trial magistrate was perfectly entitled to proceed in the manner he did and even if this court would have proceeded differently that does not warrant interference by way of revision.’’
20. This court therefore is not inclined to vacate the date of 12 th May 2026 that was granted on the 26 th Feb 2026. If the prosecution cannot find their witnesses the prosecutor should be able to exercise her power under the law and do the needful and several options exist under Article 157 of the Constitution and Sections 82 and 87 of the Criminal Procedure Code.
21. The prosecutor may as well elect what to do with the matter when the hearing resumes tomorrow at 10.00am.
22. Further Hearing on 12 th May 2026 at 10.00am.
23. It is so ordered.