REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

CRIMINAL DIVISION

CRIMINAL (MURDER) CASE NUMBER 1 OF 2020

BETWEEN

REPUBLIC...................................................................................PROSECUTION

AND

PHILIP DOMOLIMA...........................................................................ACCUSED

CORAM: JUSTICE J. M. BWONWONG’A

RULING

1. After the court explained to the accused of his rights under Section 200 (3) Criminal Procedure Code (Cap 75) Laws of Kenya to recall all witnesses who had testified before Sitati, J., the accused elected to have all witnesses recalled. His counsel Mr. Changorok confirmed the position.

2. M/s Kiptoo opposed the recall of the witnesses on the following grounds:-

-  It is difficult to get witnesses to re-testify again. The offence was committed in 2019.

-  Accused was represented by counsel who cross examined all the witnesses.

-  Finally, the accused has not given any reasons as to why the case should re-start afresh (de-novo).

3. I have considered these rival submissions. The issue is whether the trial should re-start de-novo.

4. As a result, I find that the prosecution have not produced sworn evidence in this court that it will be difficult to get the witnesses to re-testify if recalled. I also find that this case was filed and prosecuted in January, 2020.

5. I finally, find that the fact that accused had counsel who cross examined all the witnesses is not a good reason to deny the accused the right to recall all witnesses who testified before Sitati, J., since the case depends on the credibility of those witnesses.

6. It should be borne in mind that Section 200 (3) as read with section 201(2) of the Criminal Procedure Code (Cap 75) Laws of Kenya is for the benefit  and protection of the accused and not the prosecution.  The provisions of this section are intended to ensure the fair trial rights of an accused as set out in Article 50 of the 2010 Constitution of Kenya.  This is clear from this statutory provisions which read as follows:

“(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.”

It is the accused upon whom the said statutory provision confer discretion to demand for the recall of any witness, who should then be reheard.  The prosecution is not given a similar right. 

7. I have perused the record of the proceedings and I find that seven prosecution witnesses had testified.  David Kibet Limakori (PW3) only identified the body of the deceased to the doctor who performed the post mortem examination.  The accused did not cross examine him.  It therefore follows that this witness is not subject to recall by the accused.  I therefore exercise the discretion conferred upon me in rejecting the recall of PW3, since his evidence is not contested.

8. The rest of the witnesses namely Michael Limanyang (PW1), Kedutukei Lokerengan (PW2), Merkira Merinyang (PW4), Kirasiwa Limanyang (PW5), Limanyang Rimawoy Kamkal (PW6) and No. 260612 PC Jesse Ogalo (PW7), testified in support of the prosecution case.  It is equally clear that this is a case which depends on the credibility of the prosecutions witnesses.  It is for this reason that those witnesses should be recalled to testify before me, so that I can be able to assess their credibility after seeing and hearing them testify.

9. Furthermore, it is important to point out that where a recall of witness is applied for and a long period has transpired, it is possible that the memory of such a witness may have been lost during that period.  In those set of circumstances, it may not be prudent to order for a recall of the witnesses due to memory loss on their part.  In the instant case, the case was filed and prosecuted in January 2020.  It is a recent case and the memory of the witnesses is still fresh.  So the issue of memory loss on the part of the witnesses does not arise.

10. In view of the foregoing, it is clear that the witnesses are available and traceable and their memory being fresh, I find that it is in the interests of justice that they should all be recalled except David Kibet Limakori (PW3).

11.  It is therefore important this court sees and hears all the witnesses to enable it assess their credibility.

12. In the premises, the application succeeds with the result that this trial will start afresh (de-novo).

Ruling signed, dated and delivered in open court at Kapenguria on this 9^th day of December, 2020.

J. M. BWONWONG’A

JUDGE

9.12.2020

In the Presence of

Mr. Changorok for Accused

Mr. Sitati for the State

Mr. Kibet as Court Assistant