Case ID:170133

Republic v Samuel Ndungu Njoroge [2021] eKLR

Case Metadata

Case Number:

Criminal Case 34 of 2017

Parties:

Republic v Samuel Ndungu Njoroge

Date Delivered:

11 Feb 2021

Case Class:

Criminal

Court:

High Court at Kiambu

Case Action:

Ruling

Judge(s):

Mary Muhanji Kasango

Citation:

Republic v Samuel Ndungu Njoroge [2021] eKLR

Advocates:

Accused – Samuel Ndungu Njoroge

For the Accused – Njehu

Court Division:

Criminal

County:

Kiambu

Advocates:

Accused – Samuel Ndungu Njoroge

For the Accused – Njehu

History Advocates:

Both Parties Represented

Case Outcome:

Matter fixed for hearing

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO 34 OF 2017

REPUBLIC...........................................................DPP

VERSUS

SAMUEL NDUNGU NJOROGE...............ACCUSED

R U L I N G

1.

Samuel Ndungu Njoroge

is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the

Penal Code

. He pleaded not guilty to that offence. His trial commenced before

Justice C. Meoli

on 9

th

December 2019. On that day two of the prosecution witnesses testified. These were prosecution witness number 1

(PW 1)

and number 2

(PW 2)

. The trial was supposed to resume on 6

th

and 7

th

July 2020 but was further postponed because courts were not sitting due to the COVID-19 pandemic and the preventative measures taken by the judiciary.

2. On 10

th

December 2020 when this matter came up for mention before me I requested the accused to elect whether to start the case

de novo,

to recall witness who had testified or to proceed from where the trial stopped. This was in compliance with Section 200 of the

Criminal Procedure Code

. The accused elected to recall

PW1.

3. The accused’s Learned Counsel supported the application for recalling

PW1

on the submission that

PW1

did not voluntarily testify on 9

th

December 2019 but that she was forced, by the Court, to testify by being placed in custody before giving her testimony. It was on that basis that the accused stated he should be given an opportunity to test PW1’s testimony.

4. The application was opposed by

Director of Public Prosecution

(DPP). DPP stated that the accused had failed to state what part of PW1’s testimony she will be recalled to give. Further that her attendance will be difficult to obtain.

ANALYSIS AND DETERMINATION

Section 200(3) of the Criminal Procedure Code provides:

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

5. That Section, as per Section 201 (2), applies

Mutatis Mutandis

to the High Court. The application of that Section was considered by the Court of Appeal in the case

Abdi Adan Mohamed -v- Republic (2017) e KLR

as follows:

“

The re-summoning of a witness or witnesses and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence accordingly.

The learned Judges in

Ndegwa

(supra) emphasised that the court in applying the provisions of

section 200

must ensure the accused person is not prejudiced. They said:

“…No rule of natural justice, no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration….”

Because of the importance of having a trial conducted from commencement to conclusion by the same magistrate or judge

Section 200(4)

provides that;

"Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

Section 200

therefore entrenches the accused person’s rights to a fair trial as provided for today under

Article 50(1)

of the Constitution.

It must, however be remembered that it is the demand by the accused persons to re-summon

witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts.

To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking

Section 200

include, whether it is convenient to commence the trial

de novo

, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused. See

Joseph Kamau Gichuki v. R

CR. Appeal No. 523 of 2010, cited in

Nyabutu & Another v. R,

(2009) KLR 409

, where the Court stressed that;

“

By dint of section 200(1) (b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial. See

Ndegwa v. R.

(1985) KLR 535.

”

6. I therefore approach the request made by the accused on the basis that Section 200 is intended to ensure the accused person is not prejudiced by a magistrate/judge who take over of a partly heard case not being able to independently assess the

demeanour

or credibility of a witness. The case of

Abdi Adan Mohamed (supra)

makes it clear that the request for recalling of witness or for hearing the case

de novo

should not be made where the demands would be impossible to grant and should be made sparingly.

7. In this case DPP stated that it would be difficult to secure attendance that of

PW1

who resides in

Lari

. The accused’s learned counsel did not contradict nor question that submission. This court therefore presumes that indeed is the position, that the attendance of

PW1

would be difficult to secure.

8. Further I have noted that the

Justice C. Meoli

, before

PW1

testified, made a finding that the accused, who is

PW1’s

stepson, was interfering with

PW1

which interference was evident from

PW1’s

reluctance to testify. As a consequence, the court on 4

th

June 2019 ordered

PW1

to be remanded in custody up to 10

th

June 2019 in compliance to Section 152 (1) (b) of the Criminal Procedure Code. The court did also on that date cancel the accused’s bond and remanded him in custody.

9.

PW1

did eventually testify on 9

th

December 2019 and she was subjected to cross examination by the accused counsel. It is pertinent to note that no single question put to

PW1

in that cross examination was directed on whether or not

PW1

was testifying out of her own free will or not.

10. I have carefully considered the testimony of

PW1

given on 9

th

December 2019. I find that the stage at which this case, a 2017 case, has reached

and the fact that DPP’s allegation that attendance of

PW1

would be difficult and which did not get rebuttal and because the accused’s counsel did not question

PW1

on her reliability, while cross examining her there is no basis for recalling

PW1

in this matter. I find the accused will not suffer prejudice/injustice for not recalling

PW1

.

11. In view of that finding the accused’s request to recall

PW1

is denied. Further hearing date of this case shall be fixed at the reading of this Ruling.

SIGNED AND DELIVERED VIRTUALLY THIS 11

TH

DAY OF FEBRUARY 2021.

MARY KASANGO

JUDGE

11

th

February 2021

Before Justice Mary Kasango

C/A - Kevin

Accused – Samuel Ndungu Njoroge - Present

For the Accused – Mr. Olaka holding brief for Njehu

For the DPP – Miss Kathambi

COURT

Ruling virtually delivered in their presence.

MARY KASANGO

JUDGE