Case Metadata |
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| Case Number: | Criminal Case 27 of 2013 |
|---|---|
| Parties: | Republic v Derrel Martin Momanyi alias Abdulatif |
| Date Delivered: | 17 Dec 2014 |
| Case Class: | Criminal |
| Court: | High Court at Malindi |
| Case Action: | Ruling |
| Judge(s): | Said Juma Chitembwe |
| Citation: | Republic v Derrel Martin Momanyi alias Abdulatif [2014] eKLR |
| Advocates: | Mr Nyongesa for the State |
| Court Division: | Criminal |
| County: | Kilifi |
| Advocates: | Mr Nyongesa for the State |
| History Advocates: | One party or some parties represented |
| Case Outcome: | Application allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CRIMINAL CASE NO. 27 OF 2013
REPUBLIC ….............................................................................. PROSECUTOR
VERSUS
DERREL MARTIN MOMANYI alias ABDULATIF …........................ ACCUSED
RULING
The State closed its case on 15th September, 2014. The accused was put on his defence and he testified on 11th November, 2014. The accused called one more witness his brother who testified as defence witness number two.
The matter was fixed for submissions on 10th December, 2014. However, Mr. Nyongesa, State Counsel, made an oral application under Section 309 of the Criminal Procedure Act seeking to call more evidence to rebut the alibi defence adduced by the accused.
Section 309 of the Criminal Procedure Act states as follows:
“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.”
The main considerations for the court under Section 309 is whether the accused's evidence introduced new matter which could not be foreseen by the prosecution. The Section gives the court the discretion to allow the prosecution to adduce more evidence to rebutt it. Mr. Nyongesa contends that he wishes to challenge the alibi defence.
The intention of any criminal process is to know the truth. This is a murder case. The prosecution called seven witnesses and closed its case. It is clear to me that the prosecution did not expect the accused to adduce the defence of alibi. Under Section 309 it is indicated that the court may all move evidence by the prosecution if the prosecutor could not through the exercise of due diligence have foreseen the issues or matter brought by the accused.
In view of the the nature of the offence, I do find that the request by the prosecution is not unreasonable. The possibility of calling for further evidence is provided for under Section 309 of the Criminal Procedure Act. I do allow the Prosecution's request to call for more evidence as prayed. The accused, through his counsel, will be able to cross-examine the witnesses and challenge their evidence.
In the end, the prosecution's application under Section 309 of the Criminal Procedure Act is allowed. The prosecutor to serve the defence counsel and the accused with the witness statements of the new witnesses the prosecution wishes to call. This should be done within fourteen (14) days hereof.
Delivered and dated this 17th day of December, 2014 in the presence of:
Said J. Chitembwe
JUDGE
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