REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL MISC. APPLICATION NO. 13 OF 2016

MUSYOKA MWANZI...........APPLICANT

VERSUS

REPUBLIC.......................RESPONDENT

ORDER ON REVISION

1. This file has been placed before me pursuant to the provisions of Section 362 of the Criminal Procedure Code.  I am obligated to examine the record of proceedings before the subordinate court to satisfy myself of the correctness, legality or propriety and regularity of the proceedings of the court. 

2. The circumstances of this case are that the matter was initially heard by Hon. Kibiru, Ag. Chief Magistrate.  Prior to being transferred he had directed that the Complainant in the matter who had not been declared a vulnerable witness be availed in court for purposes of testifying.  When the matter went before Hon. Rose Ombata, Resident Magistrate she complied with Section 211 of the Criminal Procedure Code whereafter the Accused indicated that he wished the matter to proceed from where it had reached.

3. On the 20^th May, 2015 the matter was placed before Hon. Lesootia, Senior Resident Magistrate who complied with Section 211 of the Criminal Procedure Code and put the Accused on his defence.  Thereafter the Accused absconded.  Hon. Lesootia, Senior Resident Magistrate was subsequently transferred and Hon. R. Ombata, Resident Magistrate took over the matter whereafter she noted the anomaly. 

4. Section 200(3) of the Criminal Procedure Code provides thus:

“(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 resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

5. Following the transfer of Hon. Kibiru, Ag. Chief Magistrate Judicial Officers who took over the matter from him ought to have complied with Section 200(3) of the Criminal Procedure Code.  This was not done.

6. It is important to note that Hon. Lesootia, Senior Resident Magistrate purported to comply with Section 211 of the Criminal Procedure Code prior to the Prosecution closing its case as required by the law.

7. The trial was vitiated by the error made by the learned Magistrates.  In the premises I set aside proceedings that were not proper in the circumstances and order the matter to be heard denovo before Hon. R. Ombata, Resident Magistrate.

8. It is so ordered.

Dated, Signed and Delivered at Kitui this 12^th day of October, 2016.

L. N. MUTENDE

JUDGE