PART V
INSTITUTION OF PROCEEDINGS

B. – Proceedings

(d) Compelling Attendance of Witnesses

142.-(1) If it is made to appear that material evidence can be given by or is in the possession of any person, it shall be lawful for a court to issue summons to that person requiring his attendance before the court or requiring him to bring and produce to the court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons.

(2) Nothing in this section shall be deemed to affect the provisions of section 132 of the Evidence Act.
143. If, without sufficient excuse, a witness does not appear in obedience to a summons of the court, on proof of the proper service of the summons a reasonable time before he is required to appear may issue a warrant to bring him before the court at such time and place as shall be specified in the warrant.


144. If the court is satisfied by evidence on oath that a witness will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be specified in the warrant of arrest.


145. When a witness is arrested under a warrant the court may, on his furnishing security by recognisance to the satisfaction of the court for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish security, order him to be detained for production at the hearing.


146.-(1) Any court desirous of examining as a witness, in any case pending before it, any person confined in any prison within the local limits of its jurisdiction may issue an order to the officer in charge of the prison requiring him to bring that prisoner in proper custody, at a time to be named in the order, before the court for examination.

(2) The officer so in charge, on receipt of the order, shall act in accordance with it and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose specified in the order.


147.-(1) Any person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons or who, having attended, departs without having obtained the permission of the court or fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine not exceeding five hundred shillings.

(2) The fine imposed under subsection (1) may be levied by attachment and sale of any movable property belonging to the witness which is within the local limits of the jurisdiction of the court.

(3) In default of recovery of the fine by attachment and sale the witness may, by order of the court, be imprisoned as a civil prisoner for a term of fifteen days unless the fine is paid before the end of the said term.

(4) For good cause shown, the High Court may remit or reduce any fine imposed under this section by a subordinate court.

PART VI
TRIALS
GENERAL PROVISIONS RELATING TO TRIALS

C. - Examination of Witnesses

(a) General Provisions

195.-(1) Any court may, at any stage of a trial or other proceeding under this Act, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

(2) The prosecutor or the defendant or his advocate, shall have the right to cross-examine any such person, and the court shall adjourn the case for that purpose if it considers it necessary.


196. Except as otherwise expressly provided, all evidence taken in any trial under this Act shall be taken in the presence of the accused, save where his personal attendance has been dispensed with.


197. Notwithstanding the provisions of section 196, evidence may be taken in any trial under this Act in the absence of the accused if–

(a) the examining judge or magistrate considers that by reason of his disorderly conduct before him it is not practicable for the evidence to be given in his presence; or
(b) he cannot be present for reasons of health but is represented by counsel and has consented to the evidence being given in his absence,

and it shall be lawful for the court to continue with the trial and give judgment in the absence of the accused.


198.-(1) Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act.

(2) Where an accused person, upon being examined, elects to keep silent the court shall have the right to draw an adverse inference against him and the court and the prosecution may comment on the failure by the accused to give evidence.


199.-(1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence–

(a) refuses to be sworn or affirmed;
(b) having been sworn or affirmed, refuses to answer any question put to him;
(c) refuses or neglects to produce any document or thing which he is required to produce; or
(d) refuses to sign his depositions,

without, in any case, offering sufficient excuse for such refusal or neglect, the court may adjourn the case for a period not exceeding eight days and may in the meantime commit him to prison, unless he sooner consents to do what is required of him.

(2) If such person, upon being brought before the court at or before an adjourned hearing, again refuses to do what is required of him the court may, if it sees fit, again adjourn the case and commit him for the like period; and so again from time to time until he consents to do what is so required of him.


200. Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness after the close of the evidence for the prosecution, but it shall be lawful for the court in its discretion to adjourn the hearing of the case to a certain time and place to be then appointed and stated in the presence and hearing of the person charged.


201. In cases where the right of reply under section 296 depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply save that the Attorney-General, the Deputy Attorney-General and the Director of Public Prosecutions or any person acting under his instruction for the prosecution shall in all cases have the right of reply.


202.-(1) In any inquiry, trial or other proceeding under this Act a certificate in the form in the Third Schedule to this Act, given under the hand of an officer appointed by order of the Attorney-General for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film together with any photographic prints, photographic enlargements and any other annexures referred to therein, shall be evidence of all facts stated in the certificate

(2) The court may presume that the signature to any such certificate is genuine.

(3) When any such certificate is used in any trial or proceeding under this Act other than an inquiry the court may, if it thinks fit, summon and examine the person who gave the certificate.


203.-(1) Any document purporting to be a report under the hand of any Government analyst upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Act, may be used as evidence in any inquiry, trial or other proceeding under this Act.

(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office which he professed to hold at the time when he signed it.

(3) When any report is so used in any proceeding other than an inquiry the court may, if it thinks fit, summon and examine the analyst as to the subject matter of that report.

(4) In this section "Government analyst" includes a senior pathologist, a pathologist and any person appointed by the Minister responsible for health to perform the duties of a Government analyst under this section.


204.-(1) Any document under the hand of an officer appointed for that purpose by order of the Director of Public Prosecutions, which purports to be a report upon any fingerprint, or any photographic representation of fingerprints submitted to him for examination or comparison, shall be receivable in evidence in any inquiry, trial of other proceeding under this Act and shall be evidence of all facts stated in that document.

(2) The court may presume that the signature to any such report is genuine.

(3) When any such report is received as evidence in any trial or proceeding under this Act other than an inquiry the court may, if it thinks fit, and shall if so requested by the accused or his advocate, summon and examine or make available for cross-examination the person who gave such report.

(4) In this section "fingerprint" includes palm print, a toe print and the impression of a foot.


205.-(1) In any committal proceedings, trial or other proceedings by or before a magistrate or a judge under this Act, a report in the form set out in the Third Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, being a report upon any handwriting, or any photographic representation of any handwriting, submitted to him for examination or comparison, together with any photographic prints, enlargements or other annexures referred to in it and signed by such officer, shall be receivable in evidence and shall be evidence of the matters stated in it.

(2) The court may presume that the signature to any report under this section, print, enlargement or annexure is genuine.

(3) When any report under this section is received in evidence in any trial or proceeding under this Act other than an inquiry, the court shall, if the accused or his advocate so requests and may if it thinks fit summon and examine the person who made the report or make it available for cross-examination.
(b) Issue of Commission for Examination of Witnesses


206.-(1) Whenever in the course of any proceeding under this Act, the High Court or a district magistrate is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, the court or magistrate may issue a commission to any magistrate within the local limits of whose jurisdiction the witness resides to take the evidence of that witness.

(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner and may, for this purpose, exercise the same powers as in the case of a trial.


207.-(1) The parties to any proceeding under this Act in which a commission is issued shall be informed by the court or magistrate issuing the commission that they may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon such interrogatories.

(2) Any party may appear before the magistrate by advocate or, if not in custody, in person and may examine, cross-examine and re-examine, as the case may be, the witness.


208.-(1) After any commission issued under section 206 has been duly executed it shall be returned, together with the deposition of the witness examined thereunder, to the High Court or the magistrate who issued it, as the case may be, and the commission, the return thereto, and the deposition shall be open at all reasonable times to inspection of the parties and may, subject to all just exceptions, be read in evidence in the case by either party and shall form part of the record.

(2) Any deposition so taken, if it satisfies the conditions of section 132 of the Evidence Act, may also be received in evidence at any subsequent stage of the case before another court.


209. In every case in which a commission is issued under section 206 the proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

PART VII
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

(a) Provisions relating to the Hearing and Determination of Cases

231. (4) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person and that there is likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process or take other steps to compel attendance of such witnesses.