Republic v Rose Gakii [2022] KEHC 2031 (KLR)

REPUBLIC  OF  KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL CASE NO. 53 OF 2017

REPUBLIC …………………………………..PROSECUTOR

VERSUS

ROSE GAKII………………………………………ACCUSED

RULING

1. An order for recall of witness should be given freely whenever the justice of the case demands and provided no prejudice is visited on any of the parties.

2. Here the defence puts the case forward that they want the two witnesses Pw 1 and Pw 2 to be recalled so as to identify the photographs which served upon them on 13th January 2022.  The reason is that the witnesses were never shown the photographs when they testified to enable them identify the deceased and the scene.

3. In opposing the request Mr. Maina expressed difficulty in tracing the witnesses who he says were street boys and without fixed aboard.  That fact has not been denied by Mr. Omari.

4. I hold the view that if tracing the witnesses will be difficult, it will only work towards delaying the conclusion of the matter.  That is a prejudice that visits everybody including the court that would be forestalled from discharging its mandate.

5. In any event the case belongs to the prosecution so that if any evidence was to be left out or left hanging, it will be a prejudice to the prosecution and a benefit to the defence.

6. I find no merit in the application and I order it dismissed.  Let the matter proceed as scheduled.

Dated, signed and delivered at Meru this 10th day of February, 2022

Patrick J.O Otieno

Judge

In presence of

Mr. Omari for the accused

Mr. Maina for the prosecution

Patrick J.O Otieno

Judge