1.For determination is the Notice of Motion dated 12th May, 2023 brought under Article 50 (2), Section 146 (4) of the Evidence Act and Section 150 of the Criminal Procedure Code seeking the following orders;
2.The application was supported by grounds on the face of it application as well as the affidavit sworn by CHARLES KOMBE SAMWEL on the same day. He deponed that he was not represented at the commencement of the trial which commenced on the 9th day of November, 2022. That upon acquiring representation, his counsel applied for all the documents intended to be relied upon by the prosecution, an adjournment to enable him prepare his defence but the said request by counsel was not captured on record and the request for adjournment was declined. Further, that when the matter came up for hearing on the 13th March, 2023, the prosecutor merely told the court that he had repeated the offence and the court without giving him an opportunity to defend himself made an order for his committal thereby suspending the bail.
3.He also deponed that on the 17th April, 2023, his advocate applied to recall PW1 and PW2 for purposes of cross examination and reinstatement of his bond which had been suspended but the magistrate only allowed the request for bond and indicated that there was no room to recall PW1 and PW2 as the prosecution had closed its case. It was his addition assertion that his failure to further cross examine PW1, PW2 and PW3 is prejudicial to him.
4.In response, the Respondent filed grounds of Opposition on the grounds that the application is frivolous, an afterthought and a waste of judicial time as the said application was not made before the trial court. Similarly, that the application has failed to demonstrate how his rights to fair trial was infringed during trial.
6.Parties canvassed the application by filing submissions with the applicant filing submissions on the 25th day of July, 2023. Counsel submitted that the operative law that provides for recall of witnesses is under Section 150 of the Criminal Procedure Code which section makes clear provision that the trial court has the discretion to summon or call any person or witness or examine any person upon an application and the same having been made, the trial magistrate chose to disregard.
7.He also relied on Section 146 (4) of the Evidence Act which makes provision that the court may in all cases permit a witness to be recalled either for further examination in chief or further cross examination and if it does so the parties have the right of further cross examination and re-examination respectively.
8.Counsel relied on the case of Republic vs. Wilson Chelelgo Cheponin (2019) eKLR and further submitted that in the Constitution, the right to fair trial is placed at a much higher pedestal and it includes the right by the accused person to challenge the evidence presented against him or her and the court being the custodian of the law should ensure that constitutional rights are upheld all the time. He also relied on the case of State vs Titus Kipchirchir Kurui (2022) eKLR.
9.The Respondent on the other hand filed submissions on the 5th day of July, 2023 with counsel submitting that the application was not made before the trial court as alleged by counsel on the 17th April, 2023 or at all and therefore the application is an afterthought. She urged the court not to allow the application or recall of witnesses as this would open up a window for endless frivolous applications. She relied on the case of Misc. Criminal Appln No. 46 of 2013 Eutichus Muchemi Gatundu vs Republic where the court in dismissing such an application held that the mandate to recall witnesses is for the trial court which heard the evidence and it is not for the High Court to decide, noting that no such application was made before the trial court and that the application comes late in the day.
10.On whether the proceedings of 13th March, 2023 ought to be set aside and the same be taken by a different court and station, counsel submitted and relied on the provisions of Section 81 (1) of the Criminal Procedure Code. She also relied on the case of Stanley Muia Makau vs Republic (2020) eKLR where the court in dismissing such an application relied on the case of John Brown Shilenje vs Republic Nairobi Cr. Appeal No. 180 of 1980.
Analysis and Determination
11.I have considered the application before me, the response as well as the written submissions by counsel and in my view the issues for determination are whether the applicant should be allowed to recall prosecution witnesses PW1, PW2 and PW3 for cross examination by the accused’s counsel and whether the proceedings of 13th March, 2023 ought to be set aside and the same taken by a different court and station.
12.On the 1st issue for determination, I am well guided by Section 150 of the CPC which provides as follows:
13.On the other hand, Section 146(4) of the Evidence Act states:
14.It is important to state that a court has inherent power to do justice to all, and if justice is going to be done by recalling a witness, the decision ought to be within the law, whether the application for recall is made by the prosecution or the defence. However, good reason(s) must be provided, and in this case, counsel for the accused indicated that he wished to cross-examine the said witnesses. It will be recalled that the accused person was unrepresented at the time the witnesses testified. According to counsel, on 17th April, 2023 he made an application to recall PW1, PW2 and PW3 for purposes of further cross examination.
15.In this case, the power of the court to order the recalling of witnesses is not in dispute. I have perused the record and noted that when PW1 and PW2 were testifying, the accused person was not represented by counsel and on the 30th day of March, 2023 when the accused person was represented, counsel only made an application to be supplied with the OB and the Investigation diary. In addition, counsel proceeded to cross examine PW3 and later sought to be supplied with typed proceedings. The record as is does not show that the application to recall PW1, PW2 and PW3 was made and rejected as has been alleged by counsel. The respondent says it was not made. Unless there is reliable evidence to the contrary, the court takes the position shown by the court’s record.
16.In the circumstances of this case, I find that the applicant was given a chance to cross-examine the prosecution witnesses well within the law. The mere fact that he did not have an Advocate does not entitle him to re-open the prosecution case at this stage. I am of the view that the applicant has not shown that there is an order that is incorrect, illegal or irregular which would require this Court to interfere with the proceedings before the Trial Court. The application ought to have been made at the trial court and as such an application at this forum is an afterthought. The application also need be supported by noted shortfalls in the accused cross examination of witnesses’ sought to be recalled. The mere fact that he or she was not represented is not by itself sufficient reason to warrant recalling of the witnesses.
17.There is the question as to whether the proceedings of 13th March, 2023 ought to be set aside and the matter taken by a different court and station. I do not find anything on record to show that the trial magistrate was actuated by ill motive when conducting the hearing. No bias has been established and the Applicant did not actually pursue this issue in his submissions. There is therefore no reason for transferring the matter to another magistrate and station.
18.In the end, the application fails. The Deputy Registrar is hereby directed to remit the subordinate court file, together with this Court’s finding, to the trial court which shall proceed with the matter.