Agutu & another v Republic (Criminal Revision E008 of 2026) [2026] KEHC 7029 (KLR) (18 May 2026) (Ruling)

Agutu & another v Republic (Criminal Revision E008 of 2026) [2026] KEHC 7029 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 7029 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Revision E008 of 2026 FR Olel, J May 18, 2026 Between Nashon Ochieng Agutu 1st Applicant Jackson Okech Odhiambo 2nd Applicant and Republic Respondent Ruling A. Introduction 1.The Applicants herein are aggrieved by the ruling of Hon Willy KipKoech Cheruiyot (PM) delivered on 13rd March 2026 in Moyale MCCR NoE173 of 2025, wherein the said learned Magistrate allowed the prosecution to call additional evidence being experts witnesses from Safaricom and Government laboratory to produce call log data and documentary evidence from mineral laboratory, notwithstanding the fact the pre trial directions had been concluded on 8th May 2025, at which stage the prosecution furnished the applicants counsel with all the witness statements and other disclosures, without disclosing that they would later call in more expert evidence, which was contrary to the principles of fair trial and prejudiced their case as they were not accorded an adequate opportunity to prepare their defence. 2.It was also their contention that the log data sought to be relied on was unlawfully obtained without any lawful court order allowing for extraction of the said data and consequently the procurement and intended reliance on the same amounted to unjustified intrusion on the applicants right to privacy and due process. 3.Finally, the belated introduction of the alleged call data and documentary evidence from the mineral laboratory was clearly intended to fill in the gaps in the prosecutions case notwithstanding that prior to plea taking the prosecution had already been granted detention orders, which allowed them to hold the applicants in remand for 10 days as they undertook investigation before they were charged. It did beat logic as to why the prosecution wanted to adduce new evidence, not previously supplied and therefore urged the court to review the orders issued by the trial magistrate on 13th May 2026 allowing the prosecution to call in additional evidence in support of their case. B. Response 4.The respondent filed their replying affidavit sworn by Sgt Richard Odhiambo Ochola, dated 30th April 2026, where he deponed that the applicants were accused in MCCR 173/2025 where they faced four counts of robbery with violence, regarding an incident which occurred on 25th April 2025. The said robbery was investigated by DCI-Moyale, and investigations lead to the arrest of the two applicants within Nyahururu town on 25th April 2026 and assorted mobile phones and several bags of activated carbon containing gold were recovered. 5.As part of the investigations he had filed Moyale Misc Application E019/2025 seeking orders to obtain call data and Mpesa records of the applicants and others involved in the said robbery and the said orders were granted on 5th May 2025. He then forwarded the exhibits to the experts for analysis, which result he would obtain later since the process took time. Upon completion of the investigations, he did charge the applicants with the offence of robbery with violence and supplied the prosecution documents, including the inventory of the recovered documents, save for the call logs and material certificate which were not ready. 6.Later during trial, the respondent through their advocate had applied for the applicants Mobile phones to be released/returned to them but the prosecution had opposed the same on the basis that the said phones were recovered items from the applicants and would be used as exhibits before the court. Later upon receipt of the reports from the experts, he did notify the defence that the said documents were ready for collection, but their counsel declined to pick the same and was therefore forced to email the said documents to her. 7.The applicants’ right to fair trial had therefore not been infringed nor had the prosecution case been closed as they still had the opportunity and sufficient time to study the reports supplied and cross examine the witnesses on contents of the said document. The ruling of the trial Magistrate was therefore proper and there was no need to interfere with the same.7, The respondent thus urged the court to dismiss the said application. B. Analysis of Law 8.I have considered the application as well as the response by the Prosecution counsel. 9.The powers of the High court in revision are contained in Section 362 through to 366 of the Criminal Procedure Code (cap 75). Section 362 specifically provides as follows: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 10.What the High Court can do under its revision jurisdiction is stated under Section 364 of the Criminal Procedure Code cap 75, which states as follows: -“(1)in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;(b)in the case of any other order than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” 11.The investigating officer Sgt Richard Odhiambo has sufficiently explained the background to the charges facing the applicants and the actions taken during investigations. The applicants phones were detain upon arrest and they knew that the same would be subject of investigations. The Investigator subsequently filed Moyale Misc Application No E019/ 2025, where he was granted orders to extract data from the said phones. The said evidence therefore is not illegally obtained and can be used to support the prosecutions case. 12.On the second issue, I do find that the appellants’ rights to fair trial will not be infringed if the two expert witnesses are allowed to testify, since the prosecution’s case has not been closed and they will be allowed to cross-examine the said witnesses. The witnesses’ reports of has also been supplied to the applicant’s counsel and they cannot allege that they will be prejudiced since will have enough time to prepare to take the said evidence and also to respondent, if at all they are placed on their defence C. Disposition 13.I find that the review Notice of Motion application dated 13th March 2026 is not merited and hereby dismiss the same. 14.It is hereby so ordered. RULING WRITTEN, DATED, AND SIGNED AT MARSABIT THIS 18TH DAY OF MAY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams the 18th day of May, 2026.In the presence of;N/A…………………………………for ApplicantN/A………………………………for RespondentJarso………………………………Court Assistant