1.The Court has considered the Notice of Motion dated 13th October 2022 filed by the Prosecution pursuant to supervisory jurisdiction and revisionary powers of the High Court for Orders:-
2.The order sought to be revised is a refusal by the trial court to allow the prosecution to call the 2nd accused in the case, which was made upon a request by the Prosecution to withdraw the charges against the said accused person to enable her be called as a prosecution witness. The Proceedings of 8/6/2022 before the trial court on this application are attached to the Notice of Motion as follows:
3.From the record of the trial case, the prosecution had at the time of the applications to withdraw charges on the 2nd accused called 6 witnesses in the trial which started on 17/10/016. In its ruling of 8/6/2022 the court adverted to the unfairness of the introduction of the witness 6 years after the commencement of the trial.
Discretion of the Prosecutor to call witnesses
4.The Court accepts the guidance of the Court of Appeal in Mwangi v. R  KLR 595 that “whether a witness should be called by the Prosecution is a matter within the discretion of the prosecutor and a court will not interfere with that discretion unless it may be shown that the prosecutor was influence by some oblique motive.” I should add that because there can be no limitation to fair trial guarantee pursuant to Article 25 of the Constitution, the court may interfere where the rights of the accused are violated by the manner in which the discretion to call witnesses is exercised.
5.Article 50 (2) (j) and (k) of the Constitution protects the rights of an accused “(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; [and] (k) to adduce and challenge evidence”.
6.Although a witness and witness statements may be introduced after the commencement of trial when material evidence on ongoing investigations is discovered, I should agree that to allow the introduction of a witness six years after trial is opened is unfair, because the accused, who will have to deal with the witness statement for the particular witness at that particular point, cannot be deemed to have been afforded a reasonable opportunity to know the evidence to be used against him and or to challenge the evidence which is introduced late in the day.
Risk of doctored evidence
7.The situation is exacerbated by the fact that the relevant witness in this case as an accused sat through the testimony of the previous prosecution witnesses and her testimony may be engineered to correspond or corroborate that of the foregoing witnesses. In this case a whole 6 witnesses of the prosecution had testified. There is clear likelihood of prejudice!
8.It is precisely for the reason of risk doctored evidence that investigating officers are not permitted to conduct identification parades or to take confessions by an accused.
9.Although the High Court does have supervisory power under Article 165 (6) of the Constitution and revisionary jurisdiction under section 362 of the Criminal procedure Code, for purposes of ensuring legality of the criminal trial process, this Court is not satisfied that the order of the trial court in refusing to allow the prosecution to call the hitherto 2nd accused as a witness was illegal or in any way an abuse of discretion as to call for the interference by this Court.
10.The Prosecution was always ready to proceed against the three accused persons, the 2nd accused included, and no conceivable prejudice to the prosecution’s case is possible by the denial of leave to call as a witness the 2nd accused person charges against whom have only now been withdrawn and who was not, therefore, among the Prosecution list of witnesses. Moreover, the evidence of such a witness may technically be that of an accomplice which accomplice evidence should “generally not be accepted” (see Otieno v. R (1985) KLR 241) and is unreliable (see Mwangi v. R, supra), or that of a co-accused which is not admissible against the co-accuseds unless it is an admission (See Asira v. R (1986) KLR 227).
11.The background to all this is the constitutional right to fair trial within a reasonable time, or in the words of the Constitution “to have the trial begin and conclude without unreasonable delay” under Article 50 (2) (e) of the Constitution, which is compromised by the delay that would be occasioned by the making of a fresh witness statement for the 2nd accused, the service thereof to the remaining accused in compliance with the right to be informed of evidence to be used against them, the necessary allowance of time to prepare for the continued trial on the basis of the new evidence by the 2nd accused, and the consequential need to call evidence in rebuttal should they be put on their defence on the basis of this new evidence.
12.On the test of Mwangi v. R, supra, as to the exercise of discretion to call witnesses, the court must read ulterior motive, as indeed the trial court surmised, in the callous disregard of the consequences on the accused’s right to fair trial of the late calling of the witness, six years after the commencement of the trial and six prosecution witnesses down the line!
13.Accordingly, the court does not find any need to call on the accused persons to submit on the point of revision and the Notice of Motion dated 13th October 2022 is declined. There is no order as to costs.
14.The original trial court file Meru Chief Magistrate’s Court Criminal Case NO. 1973 of 2016 shall be returned to the trial court forthwith for further progress of the trial.Order accordingly.