[2017] KEHC 6639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

REVISION CASE NO. 3 OF 2017

DICKSON MUMO MULI & OTHERS ………...…………APPLICANT

VERSUS

REPUBLIC ………………………………………….…RESPONDENT

RULING OF THE COURT

1. P.T.M. Kisongoa advocate who has the conduct of Machakos Chief Magistrate’s Criminal Case Number 195 of 2012on behalf of the first accused therein one Dickson Mumo Muli has written a letter dated 08/02/2017 seeking the High court to examine the proceedings before the Magistrate’s court and satisfy itself as to the correctness, legality or propriety of finding and or admitting documents as evidence which is contrary to the law and particularly Section 65 of the Evidence Act and other documents contrary to Section 63 sub-section 5 of the same Act. The genesis of the complaint is that on the 21st October, 2016 an Accountant (PW.5) was allowed to produce an audit report that had been prepared from computer documents produced by a Register- D-1 and Daily Sales Records for the period 29th July, 2011 to 17th November, 2011. It is the contention of the counsel for the 1st accused in that case that the production of the said Audit Report with the computer documents was illegal and contrary to the law as provided for under Section 65 (5) of the Evidence Act as there was no certificate produced by the person who prepared or produced the microfilms. Counsel further stated that the defence had objected to the production of the exhibits but were overruled by the court and that the said Audit Report was the backbone of the prosecution’s case.

2. Upon receipt of the counsels request aforesaid, this court ordered for the proceedings from the lower court regarding the case in question namely Machakos Chief Magistrate’s court Criminal case Number 195 of 2012. The said case involved three (3) accused persons who had been charged with two (2) counts of stealing by servant contrary to Section 281 of the Penal Code. The proceedings reveal that the prosecution has already called five witnesses and matter is scheduled for further hearing on the 24/03/2017. It is the evidence of PW.5 which has precipitated the present complaint. The court record shows that after the said witness (PW.5) had testified, an attempt by the prosecution to have the witness produce an Audit Report was strenuously opposed by the defence which forced the trial Magistrate to make a ruling thereafter in which the document was allowed to be produced as exhibit No.4.

3. The power of revision is conferred upon the high court vide Section 362 of the Criminal Procedure Code which states thus:-

“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.”

The gist of the complaint revolves around the rationale behind the trial court allowing the production of the Audit Report which contained certain computer printouts despite the clear provisions of Section 65(5) of the Evidence Act. Indeed Section 65(5) of the Evidence Act as read together with Section 65(6) thereof secondary documents may be produced in evidence and in this regard computer printout could be produced and the person in charge of those systems has to make a certificate. I have perused the ruling made by the trial Magistrate which allowed the production of the Audit Report and further directed that the computer printouts shall have to be tackled by another witness who had generated the report and, who is to prepare a certificate. Since the witness (PW.5) was the one who had prepared the Audit Report it was only proper for him to produce it and the computer printouts were to await the persons who handled the computer and generated the printouts which have been described as Z – reports. I am therefore unable to find fault at the trial Magistrate for allowing the production of the audit Report by the witness (PW.5) and that the concerns raised by the Defence will be addressed when the witness who prepared the computer printouts and certificate shall be called by the Prosecution. There is no irregularity in the lower court proceedings which were conducted on the 21/10/2016.

Consequently, the request for review of the subordinate court order allowing the production of an Audit Report by Prosecution witness No.5 is found to have no merit. The same is declined. Matter is ordered to proceed in the lower court on the 24/03/2017 as scheduled.

Dated, signed and Delivered at Machakos this …16TH Day of MARCH 2017.

D. K. KEMEI

JUDGE

In the presence of:

C/A: Muoti ………………………