1.At the tail end of the prosecution evidence, the Assistant Director of Public Prosecutions Mr. Tanui asked that the court allows the State to recall Pw1, as he had recorded two statements and he was let to testify only on the evidence of identification of the deceased person. Mr. Tanui stated that recalling the witness will not be prejudicial to the defence as witness statements on his intended evidence were supplied to all the defence counsel.
2.All the defence counsel opposed the request stating that directions had been taken under section 200 of the Criminal Procedure Code for the trial to proceed from where it had reached. Secondly, the cross-examination conducted so far was premised on the evidence tendered and recalling this witness might mean recalling all other witnesses for cross-examination and thus cause undue delay in this 2017 case. Additionally, they contended that either that intended witness or his relatives sat in court after testifying, thus they could fabricate evidence from what had already transpired in court.
3.In my view, the fact that directions have been given under section 200 Criminal Procedure Code (Cap.75) that trial proceeds from where it has reached, does not mean that any witness cannot be recalled, if the justice of the case so requires.
4.I am also not aware that the witness Pw1 sat in court throughout the case, and none of the counsel has given specific dates when that witness sat in court.
5.Thirdly, I have perused the recorded evidence and note that Pw1 testified only on identifying the father (deceased) at Makindu Hospital for post mortem examination. Though the Assistant Director of Public Prosecution has not disclosed the nature of evidence to be covered he has said that the State has supplied defence counsel with the relevant witness statement. None of the defence counsel has denied this.
6.If no prior witness statement was provided to the defence, I would have declined this late request. As it is, however, as the witness statement was supplied, I will allow the request only to the extent of the witness testifying in line with the witness statement of this witness, already supplied to the defence.
7.I thus allow the request by the Director of Public Prosecutions to recall Pw1, but to testify only in line with the witness statement already supplied to the defence.It is so ordered.