Republic v Denis Wamaye Kimemia & Njoroge Mbugua [2018] KEHC 7868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO 49 OF 2010

REPUBLIC.................................................PROSECUTOR

VERSUS

DENIS WAMAYE KIMEMIA..................1ST  ACCUSED

NJOROGE MBUGUA...............................2ND ACCUSED

RULING

1. The accused persons DENIS WAMAYE KIMEMIA and NJOROGE MBUGUA were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the night of 6th and 7th of February, 2010 at 1. 30 a.m. at Kayole Estate Embakasi District within the then Nairobi Province jointly with another not before the court murdered JOHN MAINA MUBIA.

2. They pleaded not guilty to the said charges and on 11th July, 2011 their trial commenced before Justice Ombija (as he then was) who heard the evidence of eight (8) prosecution witnesses.  On 14th July, 2015 Miss Mwaniki then prosecuting informed the good Judge that PW8 had testified in chief and was partially cross examined by the 1st accused and therefore applied to re-open the prosecution case and by a ruling dated 16th July, 2015 the trial Judge (Ombija, J) declared a mistrial “because in the event the accused persons or one of them is convicted he/she will raise this issue in the Court of Appeal as a substantial ground of appeal - miscarriage of justice.”

3. On 22nd February, 2017 the trial herein commenced a fresh before me and the prosecution called six (6) witnesses who testified on its behalf. On 7th February, 2018 Mr. Meroka the learned prosecutor applied under Section 34 of the Evidence Act to adopt the proceedings of 22nd May, 2014 in respect of one witness namely JUSTINE MACHARIA who had testified  before Ombija J since the prosecution had failed to secure the attendance of the said witness and the issue in dispute was the same and the defence had had an opportunity to cross examine him thereon.

4. On behalf of the defence Mr. Kangahi for the 1st accused submitted that since the court had declared a mistrial which invalidated those proceedings it would be difficult in law to rely upon the proceedings in a fresh trial.  It was his submissions that if that were to be allowed then there would have been no need for a fresh trial.  Mrs. Nyamongo for the 2nd accused supported the said submissions.

5. The only issue for determination is whether the court can receive in evidence the proceedings arising out of a trial declared a mistrial?  Section 34(1) of The Evidence Act upon which the prosecution’s application is based provides as follows:-

34(i)  Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceedings or at a later stage in the same proceedings, for the purposes of proving  the facts which it stated in the following circumstances:-

a. Where the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers reasonable.”

6. When Mistrial is granted it is assumed that there has been no trial. See STATE v TYSON 138 NC 627 & 629 Mistrial results in nullification of the previous trial and the parties are then returned to their original position since at a retrial a party can introduce new evidence and assert new defences which were not raised at the first trial.  See UNITED STATE v MISCHLIF 310F SUP 669. The trial proceeds as if the first one never occurred and therefore to adopt the evidence tendered at a trial which has been nullified will cause prejudice to the accused persons.  Further the court shall not have the advantage of assessing the demeanor of the said witnesses.

7. In this matter the prosecution has also failed to establish the reason upon which the said evidence is to be admitted as the court has not been told of an effort made to secure the attendance of that witness.

8. I am in agreement with the submissions by Mr. Khangahi for the 1st  accused that to receive that evidence would be improper and prejudicial to the defence and therefore decline to allow the prosecution to adopt the said evidence at this stage of the proceedings.

DATED, DELIVERED and SIGNED at Nairobi this 28th day of February, 2018

………………………..

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Kangahi for the 1st accused

Mrs. Nyamongo for the 2nd accused

1st and 2nd Accused persons present

Court clerk Tabitha