[2023] KEHC 26836 (KLR)

Anyango & another v Republic (Criminal Appeal E009 of 2023) [2023] KEHC 26836 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26836 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E009 of 2023

MS Shariff, J

November 10, 2023

Between

Sila Ochieng Anyango

1st Appellant

Elsa Awuor Owino

2nd Appellant

and

Republic

Respondent

(Being an Appeal from the ruling and order of C.N.C. Oruo (SRM) in Winam SPM Criminal Case No E041 of 2021 delivered on 14th February, 2023)

Judgment

A. Case background 1. The trial court delivered its ruling disallowing the Appellants’ objection to the production of certain documents by the Investigating Officer. In the trial before that court, the Appellants’ Counsel Mr. Ayayo raised objection on the grounds that the documents sought to be produced by the Respondent through the Investigating Officer PC Ekraa Mangare were neither marked nor produced by the witnesses from the bank or KRA. He also asserted that they had not been supplied with the said documents prior to their raising of the objection before the trial court.

2. In his ruling on the objection, the trial magistrate found that the Respondent had laid a basis for the production of the documents after an inference had been made to them in the course of the prosecution’s case and the said documents had been marked for identification.

B. Appeal 3. Dissatisfied by the trial court’s ruling, the Appellants moved to this court on appeal raising the following grounds;a.The learned trial magistrate erred by finding that the prosecution had set a basis for the production of the said documents and that the same had been marked for identification and or production notwithstanding the fact that it was one of the issues raised by the appellants’ Counsel.b.The learned trial magistrate erred by holding that there was no prejudice the Appellants would suffer if the investigating officer produces the said documents.c.The learned trial magistrate erred by allowing into evidence production of documents that had not been served on the defence who had not had time to interact with the said documents.

4. The appeal proceeded by way of submissions. Both parties complied.

5. The Appellant submits that there was no basis laid for the production of P.exh 7 by PW-7 in that the other witnesses had made no reference to them. That no basis had been laid for their production and cites the authority in Kenneth Nyaga Mwige v Austin Kigutu and 2 others [2015] eKLR.

6. The Appellants’ Counsel submits that the documents had not been marked for identification and the Respondent’s insistence that the document forms part of the court record will violate the accused persons’ rights as guaranteed by Article 50(2)(j) of the Constitution of Kenya 2010. Reliance is placed on the decisions in Des Raj Sharma v Reginam [1953] EACA 210 and Thomas Patrick Gilbert Cholmondley v Republic [2008] eKLR.

7. In supporting the trial court’s ruling, the Respondent submits that the witnesses had laid a basis for the production of the documents. Further that the Appellants had been duly supplied with the documents.

C. Analysis and determination. 8. In a first appeal, the duty of the court was held in Mark Oiruri Mose v R (2013) eKLR thus;….the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

9. The issue in this appeal is whether the trial magistrate erred in finding that the documents sought to be produced by PW-7 had been marked for identification.

10. A perusal of the record reveals that the documents sought to be produced are PMFI-1; payment slip from Cooperative Bank, PMFI-2 statement from KRA and PMFI-3; bank statement. The record shows that PW-4 made reference to PMFI-1 and PMFI-2 while PW-5 made reference to PMFI-3.

11. It is also clear from the record that at the time PW-3 was testifying, the Appellants’ Counsel raised an objection to the production of the same documents on the basis that the same had not been supplied to them and or that the documents had not been shown to PW-1. The record bears that the court made a ruling on the objection whereafter the matter proceeded.

12. I agree with the learned trial magistrate that there exists no set of rules requiring a document to be identified by PW-1, rather, the Prosecutor is at liberty to produce the documents according to the witness testimony.

13. I take cognizance of the calling in Article 50(2)(j) which enjoins this court to ensure that the prosecution supplies all the evidence that it intends to rely on beforehand. Upon my scrutiny of the proceedings, I find that the documents had been mentioned in the proceedings and same had been supplied to the Appellants at the time that PW-4 testified. In fact, an adjournment was granted on 3/5/2021 so to enable the Respondent supply the said documents to the Appellants’ Counsel.

14. The main challenge by the Appellants is on the fact that the prosecution had not laid a basis for the production of the said documents by the Investigating Officer.

15. I have considered the authority cited by the Appellants to wit Cholmondley (supra) which cited with approval the English decision in Republic v Ward [1993]2 ALL ER 557, where the court had held;“The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution was under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure.”

16. I am also guided by the decision of Achode J (as she then was) in Republic v Peter Wakaba Meria & 10 others [2017] eKLR, where the learned judge held;I note three things from the submissions. The first is that the document adverted to had already been marked for identification in the proceedings. The second is that it is alleged to have been authored by one of the Accused persons in the proceedings. Lastly, the said document was obtained by the Investigation Officer in the cause of investigations and all the documents so recovered had already been supplied to the defence together with witness statements. This is therefore not a new document which the prosecution has belatedly stumbled upon and is trying to sneak into the evidence as it were.

17. From the above analysis and authorities, I do find that the matter herein bears semblance to the decision by Achode JA and I therefore stand guided and persuaded by the sentiments therein. It is common place that the documents had been referred to earlier in the hearing, and had actually been supplied to the Appellants. Moreover, the documents were obtained in the course of the investigation of the matter. They cannot therefore be categorized as novel documents and likewise the Appellants were not ambushed by it intended production of the same by PW7.

18. Nonetheless, the Appellants would have a chance to cross-examine the Investigating Officer on the probative value of the contents therein and the court will make a determination on the same. The Appellants will not be prejudiced in any way.

19. In light of the above, I find no merit in the appeal and I hereby dismiss it. The matter to proceed to hearing before the trial court and the documents may be produced by the Investigating officer.

20. Orders accordingly.

DELIVERED, DATED, AND SIGNED AT KISUMU THIS 10TH DAY OF NOVEMBER 2023MWANAISHA S. SHARIFFJUDGE