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Can Prosecution Witness Testify for Defense?

Many a times  witnesses to a litigation proceeding are at cross roads as to which side of the court their testimonies will serve better during the trial of a case.

Although traditionally a witness is subject to cross examination by contesting  parties during the trail, their testimonies may build a case for either side of the divide depending on the wittiness of defense or prosecution lawyers appearing for the litigants.

In Kenya, its common norm that a prosecution witness cannot  switch sides and take the defense stand if he or she had already been cross-examined prior to close of the case because in such a scenario it would imply that the court is setting aside its own orders and compelled to revisit the case afresh on whether the accused had a case to answer in the first place.

The court only gives the defense a leeway to  apply for a  recall of  such a witness before the prosecution closes their case ahead of the proceedings with the defense hearing.

According to a ruling which was delivered at the Kiambu High Court last week, Justice, Professor Joel Ngugi clarified saying “The core principle to have in mind in making the judgement call is to ensure all parties were awarded a fair trial and the rights of all actors in the criminal justice system were delicately balanced.”.

Proff. Ngugu noted that while the court had a solemn duty to ensure that all available probative evidence was brought to its attention and that no legal technicalities should be used to prevent the substantive ventilation of all the evidence available, the court had an equally important task to ensure that orderly procedures were followed to avoid prejudicing any actors in a criminal trial.

“I am not aware of a single case in our decisional law where the Defence was permitted to recall a Prosecution witness during the defence hearing of the trial. As Ms.Catherine Mwaniki pointed out, this is for good reason; the Court has already taken a provision view of a prosecution case in order to render itself on whether there is a case to answer or not. A recall of Prosecution witness post prima facie case stage is, definitionally, an invitation to disturb that finding. It would be difficult to assess whatever testimony additional evidence the recalled witness would bring causing embarrassment to the Prosecution” The Judge noted in his ruling

I imagine this very practical concern makes it highly imprudent and unlikely that the court would deploy sections 150 CPC and section 146(4) of the Evidence Act to recall a Prosecution Witness after the accused person has already been put on her defence.But it does not categorically forbid it, he stated.

Justice Ngugi made the ruling in a case in which the widow of the former principal of Kiru Boys High School in Muranga is facing murder which she allegedly committetd in 2016 before Kiambu High Court.

Jane Muthoni Muchere (1st accused) is jointly charged with Isaak Ng’ang’a Wambui alias Gikuyu (2nd accused) that on Nov 26th 2016, they unlawfully murdered Mr. Solomon Mwangi contrary to section 203 as read with 204 of the penal code.

The trial began in 2017 during which the prosecution called 21 witnesses in its bid to prove its case on 04/06/2019. Upon these facts, the court returned a verdict that the two accused persons had a case to answer in a ruling dated 08/02/2020 but due to COVID-19 pandemic it temporarily halted the proceedings which resumed on 19/1/0/2020 when the widow completed her sworn evidence.She was consequently cross-examined on 21/10/2020.

After she completed her testimony the defence counsel Mr. Francis Njanja announced that the defense wished to call June Muthoni Mbithi as a defence witness June had testified for the state as Prosecution witness No. 4 (PW 4) she is the daughter of the 1st accused and the deceased.

Ms.Mwaniki for the prosecution and Mr. Wokabi Mathenge for the victim’s family immediately objected to the application to call June as a Defence witness. They rightly pointed out that there was no provision of the Law that allows that and indeed the sub-text of the Law and the criminal procedures forbids the defense to call a state witness who had previously testified as such a witness,they pointed out.

In reply, Mr. Njanja abandoned his application to call June as a defence witness and instead varied his application to be one to recall her for further cross-examined in order to clarify  certain matters. Mr. Njanja told the court that these matters arose in the course of the trial and that it would not have been possible to cross-examine her when she first testified.

In arguing the application, Mr. Njanya relied on section 146 of the Evidence Act and pointed out the foremost duty of the court was to ensure fair trial by ensuring that all evidence available was  brought to the attention of the court so that the court could establish the truth. “ The accused persons are entitled to bring all evidence they can defend themselves given the very serious charge they face” he reiterated.

He insisted that the witness will not recant her evidence but would offer important  clarification which he noted were critical to the defence case and pleaded with the court to allow the application in the interest of Justice.

Ms. Mwaniki and Mr.Mathenge remained opposed to the Application as varied. They pointed out that the court had already made a ruling on a prima facie case based on the evidence on record and  that it would be both unprocedural and prejudicial to the Prosecution and the victim’s family if the court orders a Prosecution witness who had already testified and had been cross-examined to be recalled during defence hearing stage of the trial.

This, the DPP and the victim’s Counsel insisted, would amount to the court setting aside its own orders since it would mean that the court would have to revisit its decision that the accused persons have a case to answer. They pointed out that the Defence has not told the court why it did not recall the witness before the close of the Prosecution case; and neither had the  nature of the evidence sought to be adduced been brought to the attention of the court.

The Judge allowed the defence to continue with the unsworn defence of the second accused and adjourned the case until November 7 when the defence will confirm if the prosecution will have served their submissions.Thereafter, the court will give their date for the Judgement in which the accused have been held in custody  for the 4 years.

They were denied bond after their co-accused who was jailed for 7 years after becoming a prosecution  witness complained of threats while in prison.The fourth accused also is still on the run and is said to have escaped and migrated to a neighbouring country.

Mr.Justus Olaka,an advocate at the Kiambu High court said the court was in order to have rejected the application by the defence.If the Judge would have allowed it, it would have meant that he sets aside his previous ruling of preferring a prima facie  case against the accused and this would be going round in circles.


By Lydia Shiloya

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