[2014] KEHC 3254 (KLR)
The court found that denying the applicant access to the documents for independent examination would infringe her constitutional right to a fair trial as guaranteed under Article 50(2) of the Constitution. The learned trial magistrate's refusal to release the exhibits was therefore set aside. The court ordered that...
Source-derived case information.
- Citation
- [2014] KEHC 3254 (KLR)
- Parties
- Applicant: Anne Wambui Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 24 of 2014
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application allowed. Order of the trial magistrate set aside.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Forgery, Fair Trial Rights, Document Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wambui Kariuki
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant is entitled to access the documents in question for independent examination to aid her defence.
- 2 Whether denial of access to the documents infringes the applicant's constitutional right to a fair trial.
Ratio Decidendi
The court found that denying the applicant access to the documents for independent examination would infringe her constitutional right to a fair trial as guaranteed under Article 50(2) of the Constitution. The learned trial magistrate's refusal to release the exhibits was therefore set aside. The court ordered that certified copies of the documents be released to the applicant for examination by her chosen expert, ensuring her ability to adequately prepare her defence and challenge the prosecution's evidence. This upholds the constitutional guarantee of fair trial rights and the principle that accused persons must have adequate facilities to prepare their defence.
Court Disposition
Application allowed. Order of the trial magistrate set aside.
Orders
- Certified copies of the documents in question to be released to the applicant for her document examiner to prepare a report within 14 days of handing over the documents.
- The original file to be returned to the learned trial magistrate for the trial to proceed expeditiously.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION NO. 24 OF 2014
ANNE WAMBUI KARIUKI.......................................APPLICANT
VERSUS
RESPONDENT..........................................................REPUBLIC
(From the order in Criminal case Number 2684 of 2013 in the Chief Magistrate’s court at Kibera)
RULING
The applicant Ann Wambui Kariuki has been charged in the lower court with the offence of forgery contrary to Section 349 of the Penal Code. The genesis of the charge is a sale agreement said to be between the applicant and her brother over a parcel of land. A report prepared by a document examiner has been presented to the applicant’s counsel which implicates her.
By a letter dated 24th March, 2014 the learned counsel for the applicant has submitted that the evidence so far adduced is contradictory and that the documents should be released to the applicant to enable her engage an independent document examiner and a report prepared to aid her defence. An application made before the learned trial magistrate to that effect was denied.
This is grounded on Article 50 (2) of the Constitution which provides that every accused person has the right to a fair trial which includes the right-
(c) To have adequate time and facilities to prepare a defence.
(k) To adduce and challenge evidence.
It is submitted that the failure by the learned trial magistrate to allow the accused’s document examiner access to the documents is not only prejudicial but would infringe on her constitutional rights.
It is the duty of the courts to give effect to the tenor, context and spirit of the Constitution. With respect therefore, the learned trial magistrate should have acceded to the applicant’s application aforesaid. The learned counsel for the Republic concedes the request by the applicant and therefore the order by the learned trial magistrate declining to release the exhibits to a document examiner of the accused’s choice is hereby set aside.
The original file now shall be returned to the learned trial magistrate with directions that certified copies of the documents in question shall be released to the applicant for her document examiner to prepare a report within 14 days of the handing over of those documents. Thereafter the trial shall proceed expeditiously.
Orders accordingly.
SIGNED DATEDandDELIVEREDin court this 17thday of July, 2014.
A.MBOGHOLI MSAGHA
JUDGE