Richard Charo Mole v Republic

The trial was not a short one; ten prosecution witnesses had testified before the first magistrate, who had observed their credibility and demeanour. Section 200(3) imposes a mandatory duty on the court to inform the accused of the right to recall witnesses; no application by the accused is required. The omission was grossly prejudicial and, in an appropriate case, renders the trial a nullity. This Court's guidance in Ndegwa v Republic reinforces that section 200 should be used sparingly and that the magistrate delivering judgment should have seen and heard the witnesses.

Section 85(2) as applicable at the time of trial permitted appointment as public prosecutor only of an advocate of the High Court or a public officer not below the rank of Assistant Inspector of Police. The amendment by Act No. 7 of 2007 removing the rank requirement came after the trial. Following Elirema & Another v Republic, the Attorney-General had no power to appoint such an officer, and the trial conducted partly by him was a nullity.

Applying the retrial principles in Muiruri v Republic and Mwangi v Republic, the court weighed the illegality in the original trial and the lengthy incarceration against the seriousness of the charges (two deaths), the likelihood of conviction on admissible or potentially admissible evidence, and the State's readiness to produce police and bank witnesses at short notice. The interests of justice favoured a retrial, conducted expeditiously before a different magistrate.