David Ngaba Kiramba v Republic [2016] KEHC 1358 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

HCCRA  NO. 36  OF 2016

DAVID NGABA KIRAMBA…….…………..……........................PLAINTIFF

VERSUS

REPUBLIC…………………………………………………DEFENDANT

(An appeal from directions by R. Odenyo (SPM) in Migori CRC NO. 685 OF 2014 made on 22/07/2016)

JUDGMENT

1. This appeal is strictly related to directions given on 22/07/2016 regarding  how the matter before the trial court  was to proceed. DAVID NGABA KIRAMBA (the appellant) was charged with six counts of the offence of robbery with  violence Contrary  to Section 295 as read with Section 296(2) of the  Penal Code.

2. The matter proceeded for hearing on 20th November 2014 before D.K. Kemei (CM) at Migori Law Courts and as at 8th April 2016 he had taken the evidence of 13 prosecution witnesses and  the prosecution closed its case.

3. On 05/05/2016 Hon. Kemei (CM) ruled that the appellant had a case to answer and placed him on his defence and a date was set for defence hearing on 13/05/2016.

4. However by the time the matter was set for defence hearing, Hon. Kemei (CM) had been transferred from Migori Law Courts, to Nakuru Law Courts and replaced by Hon. R. Odenyo (SPM).

5. The court then explained to the appellant his rights under section 200 (3) of the Criminal Procedure Code and his counsel,  Mr. Kamiro informed the court  of the appellant’s desire to recall PW5  PW10, PW11,PW12 and PW13; all  whom he said  were important witnesses and it was crucial  that the  new trial magistrate appreciated what was contested.

6. Mr. Kimando on behalf of the prosecution had no objection to his request except for PW13 who was described  as an expert  witness, and it had ttaken almost a year to obtain his attendance to court.

7. Mr. Kamiro then responded thus:-

“ The last time PW13 was here he indicate he is normally around.  But I can  dispense with him.”

8. Upon considering the submissions, the trial magistrate pointed out that a ruling had been made under Section 211 Criminal Procedure Code and  defence indicated that they were ready to proceed with their case, so the application was disallowed.”

9.      The appellant was dissatisfied with this ruling on grounds that the trial magistrate misinterpreted the provisions of Section 200 (3) Criminal Procedure  Code, and failed to comprehend that the accused had a right to demand a rehearing of the witnesses whose evidence had been recorded by his  predecessor.

10.      At the hearing of this appeal Mr. Kimiro  submitted that  the  State had no objection to the recall of witnesses, and argued that the  law does not restrain  recall of  witnesses just because prosecution has closed its case.  Further that the   section does not limit the right to recall to any stage where the case has reached  whatsoever.

11.      Mr. Kimiro explained that the recall was important as PW11 and PW12  had  testified in his absence on 12th  June 2016, despite the fact that he had written to     the court explaining  his inability  to attend.  He emphasized that the appellant  faces  serious  capital offence and should be allowed  to exhaust the avenues  available.

12.      Mr. Kimando in opposing the application submitted that once  prosecution had closed its case, then the next stage was for defence to present its case as the appellant had even been informed of his rights under Section 211 Criminal     Procedure Code.

Counsel contends that Section 200 Criminal Procedure Code is for purposes of credibility  of proceedings and in this instance the proceedings were well typed and it would be a waste of time to recall the witnesses who had testified.  He argued that counsel herein  never applied  to recall the witness before prosecution closed its case.

Section 200 (3) of the Criminal Procedure Code provision as follows:-

“Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused may  demand that any witness be resummoned  and reheard and the succeeding magistrate shall inform the accused person of that right.”

13.      The argument by Mr. Kimando is off tangent , and would only fit if the matter was being heard by the same magistrate who had started it.  A new magistrate had taken over, Section 200 (3) does  not limit the right  to recall to a particular stage of the trial.  In fact if the appellant  wished he could have elected for recall of ALL the witnesses or even De Novo hearing.

The prosecution had not expressed  any difficulty in getting the preferred witnesses and  in fact the defence had conceded the recall of PW13 due to challenges prosecution had in attaining his attendance.

15.       I agree with the appellant that the trial court misinterpreted the  provisions of Section 200 (3) Criminal Procedure code.

Consequently the directions given are quashed and I direct that he   witnesses  requested for be recalled to testify.

DATED and SIGNED at MIGORI this  24th  day of November, 2016.

H. A.OMONDI

JUDGE