Republic v Cliff Peter Voremi [2016] KEHC 3448 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT MOMBASA

MURDER  62 OF 2013

REPUBLIC ….................................................................PROSECUTOR

VERSUS

CLIFF PETER VOREMI ….....................................................ACCUSED

RULING

This is a Ruling in respect of an application by Mr Mushelle, advocate for the  accused person to have the matter start de novo since only two witnesses  have testified.

The  same has been objected to by M/s Ocholla, counsel for the state who has noted that there has been delay in having the  matter heard expeditiously due to advocate's  absence. She argues that starting the matter de -novo would frustrate the witnesses  and delay the  matter further. She  also submits  that  there was counsel present when the two witnesses on record testified, hence the trial can be said to have been was  properly conducted. She further stated that the advocate for the accused person has therefore  not given  sufficient reason for the matter to start de -nove.

In reply to this, Mr Mushelle stated that neither the prosecution  nor the defence  would be prejudiced if the matter started de -novo. He went on to  explain that the  delay in having  the matter heard expeditiously was caused by the confusion which was exhibited by the accused person whereby he had been receiving treatment. He also indicated that the first time the accused appeared not to  follow proceedings and so the same were stopped to enable him receive treatment.

Having listened to both counsel, I have read through the records of the case.

According to the  records, this case was adjourned severally because of :

(a) waiting of a psychiatrist report.

(b) lack of exhibits

(c) waiting for a pre-bail report.

I have also established that when  the  two witnesses testified  on 2. 10. 2014 Mr Mushelle for the  accused  was on record then and he made no indication to court that the accused was not able to follow the proceedings. In fact Mr Mushelle cross examined the two witnesses extensively.

I therefore agree with Ms Ocholla for the state that the trial,  whereby two witnesses testified,  was properly conducted and Mr Mushelle has therefore not given sufficient reason why  the case should start de-novo and the  two witnesses recalled.

While  an accused person under section 200 (3) of the CPC has a right  to have witnesses recalled or summoned to testify where they would have already testified, court  is expected to be reasonable and judicious in considering this right. This means the accused person is expected to  give sufficient reason for such application.

In the  instant case, I find that the defence has not given sufficient reason why the case should start de -novo and at the end of the day this would  end up offending the provision of Articles 50(2) (e)and Article  159 (2)(b) of the Constitution , 2010, which provisions provides for expeditious /speedy trial. I therefore find the application to have his case start de -novo lacking merit  as it will only cause further delay in  the matter being finalized. I proceed to dismiss the same.

Dated and delivered this 26TH day of July, 2016.

D. CHEPKWONY

JUDGE