[2017] KEHC 1749 (KLR)
The court found that the trial court's refusal to allow the investigating officer to record and serve his statement before testifying was overly technical and failed to consider the interests of justice. The judge emphasized that the investigating officer is a formal witness whose testimony is important for the fair...
Source-derived case information.
- Citation
- [2017] KEHC 1749 (KLR)
- Parties
- Applicant: Anthony Mariach Kunuíta; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 18 of 2017
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- Trial court's order set aside; matter transferred to another magistrate.
- Judges
- RPV Wendoh
- Legal Topics
- Criminal Procedure, Witness Statements, Trial Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Mariach Kunuíta
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the trial court erred in refusing to allow the investigating officer to record and serve his statement before testifying.
- 2 Whether excluding the investigating officer's testimony prejudiced the interests of justice.
Ratio Decidendi
The court found that the trial court's refusal to allow the investigating officer to record and serve his statement before testifying was overly technical and failed to consider the interests of justice. The judge emphasized that the investigating officer is a formal witness whose testimony is important for the fair determination of the case. The court held that the accused would not suffer prejudice if the investigating officer was allowed to testify, provided the statement was served in advance. The court further noted that justice should not be sacrificed for procedural technicalities, and that the trial court's order excluding the investigating officer's testimony should be revised...
Court Disposition
Trial court's order set aside; matter transferred to another magistrate.
Orders
- The trial court's order of 20/4/2017 excluding the investigating officer from testifying is revised and set aside.
- The evidence of the investigating officer shall be taken.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
CRIMINAL REVISION NO.18 OF 2017
ANTHONY MARIACH KUNUITA………………………….APPLICANT
- V E R S U S –
REPUBLIC………………………………………………..RESPONDENT
REVISION ORDER
This case has been referred to me by the learned State Counsel Ms. Chelangat for purposes of revision.
The background of this application for revision is that this case came up for hearing on 20/4/2017 when the court was informed that the investigating officer was present but had never recorded his statement because he had been away on an operation and needed time to go record his statement so that it could be served on accused before the hearing could proceed.
The court declined to grant the investigating officer that opportunity and observed that the case had not proceeded to hearing since 7/6/2016 when accused took plea, and that the matter had come up severally and yet no request had been made for the investigating officer to go and record his statement and therefore the court declined to allow the investigating officer time to go and record his statement or testify.
There is obviously some laxity on the part of the prosecution for not having had the investigating officer’s statement recorded 9 months after the accused had been arrested. This is because the accused should have been supplied with all witness statements upon being charged. But on the other hand, the investigating officer in most cases, is a formal witness and will testify on what he was informed or for what he found at the scene or what he deduced from interrogating witnesses.
I also observe that not only witnesses who will have recorded statements can be called to testify. Other witnesses who may not have been known or who could not be found can record statements after the commencement of the case and the same would be given to the accused before the said witness testifies.
In this case, only 2 witnesses had so far testified. The court should have considered what prejudice would be suffered by the parties to this case (the accused and the complainant), if the investigating officer was locked out of the witness box. If the investigating officer had been allowed, the investigating officer would have recorded his statement and proceeded to be heard the next day or would have been heard later after the other remaining witnesses testified and avoided the delay that has been occasioned following this application and justice will have been seen to have been done.
Article 159 2(d) of the Constitution empowers the courts to administer justice without undue regard to technicalities. In the interests of justice, it is proper that the trial court’s order of 20/4/2017 to lock out the investigating officer from testifying be revised and set aside so that the evidence of the investigating officer can be taken.
In light of what has transpired before the trial court, it is proper that this matter be transferred to another magistrate with jurisdiction to try and finalize it.
Mention before the Chief Magistrate on 29/11/2017.
Signedand Dated at NYAHURURU this 23rd day of November, 2017.
………………….
R.P.V. Wendoh
JUDGE