[2022] KEHC 1840 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

ACEC REVISION NO. E014 OF 2021

THE DIRECTOR OF PUBLIC PROSECUTIONS..........................................PLAINTIFF

VERSUS

YAGNESH MOHANLAL.......................................................................1ST RESPONDENT

MAHINDRA PATHAK ........................................................................2ND RESPONDENT

BENEDICT MUTUA..............................................................................3RD RESPONDENT

PETER MECHA.....................................................................................4TH RESPONDENT

PHANUEL OKWENGU.........................................................................5TH RESPONDENT

TRITON PETROLEUM CO. LTD........................................................6TH RESPONDENT

RULING

1. By the Notice of Motion dated 6th October 2021 filed herein on 12th October 2021 the State/Applicant seeks revision of the ruling of the trial court in CMACC No. 18 of 2009Republic v Yagnesh Devani & 8 others which rejected its application to adduce additional evidence in the case. This court is urged to invoke its supervisory jurisdiction under Article 165 (6) and (7) of the Constitution and Section 362 of the Criminal Procedure Code to call for and examine the record of the trial court for purposes of satisfying itself and pronouncing the correctness, legality or propriety of the ruling of the trial court and to quash the ruling dated 4th October 2021.

2. The grounds for the application as can be discerned from its face thereof, the supporting affidavit sworn by Samita Mang’oli on 6th October 2021 and the submissions of Learned Counsel for the State/Applicant are that the trial of the accused persons commenced in the year 2009 and thirty five (35) witnesses have testified so far; that the original prosecutor in the CMACC 18 of 2019 died and when a new team took over and reviewed the case they discovered new evidence that had not been disclosed to the Director of Public prosecutions; that the documents that were discovered are material to a fair and just determination of the case on merit but nevertheless the trial court dismissed the application to have them introduced in the case and held that the State/Applicant had not given tangible justification for failing to disclose the evidence at the pre-trial stage, in utter disregard of the principle that disclosure is a continuous process and the court should not shut out crucial evidence as the accused persons/Respondents can be given an opportunity to recall the witnesses. It is contended that Article 159(2) of the Constitution requires courts to administer justice without undue regard to technicalities and that because the ruling of the trial court goes against Article 157 of the Constitution the same ought to be reviewed, varied, reversed and/or set aside.

3. In support of their submissions Counsel for the Applicant cited Article 50 of the Constitution, the cases of Republic v Raphael Muoki Kalungu [2015] eKLR, the case of Republic v Wilson Chelelgo Cheponin [2019] eKLRand the case of Thuita Mwangi & 2 others v Ethics & Anti-corruption Commission & 3 others [2013] eKLR where it was held: -

“That the duty of disclosure is a continuing one throughout the trial. Furthermore, the words of Article 50(2)(j) that guarantee the right “to be informed in advance” cannot be read restrictively to mean in advance of the trial. The duty imposed on the court is to ensure a fair trial for the accused and this right of disclosure is protected by the accused being informed of the evidence before it is produced and the accused having reasonable access to it. This right is to be read together with the other rights that constitute the right to a fair trial. Article 50(2)(c) guarantees the accused the right, “to have adequate facilities to prepare a defence.”

4. Counsel also cited the case of Republic v Judith Ward (1993) 96 CR App R1-4 where the court stated: -

“The prosecution’s duty at common law is 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 witnesses 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 were 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. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses.

and the case of Gilbert Patrick Cholmondeley v Republic [2008] eKLR where the court held:-

“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed undersection 77of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

5. Counsel submitted that disclosure is a continuing process and the words in Article 50(2) (j) “to be informed in advance” cannot be read restrictively to mean in advance of the trial. Counsel submitted that the duty imposed on the Court is to ensure a fair trial for the accused and the right to disclosure is protected if the accused is informed of the evidence before it is produced and by the accused having reasonable access to the evidence. Counsel submitted that the right to disclosure must be read together with the other rights that guarantee a fair hearing and in particular the right to have adequate facilities to prepare a defence.

6. Counsel contended that the evidence was disclosed to the respondents and that nothing stops the defence from interviewing its own witnesses and engaging expert witnesses so as to counter the prosecution’s case.

7. Counsel cited the case of Director of Public Prosecutions v David Mwiraria (Deceased) & 6 others [2020] eKLR where Onyiego J held:-

“35. .......... It is also clear that besides Article 50(2) of the Constitution, there is no express provision governing timelines in disclosure of material evidence. It is at the discretion of the trial court to determine on what to or not to admit or allow as evidence. Although, in this case the court correctly and adequately addressed her displeasure regarding the indolent manner in which prosecution was conducting itself as though they were in control of court’s time, shutting out available evidence already served would be more prejudicial to the complainant in this case the Kenyan people on whose behalf these proceedings are being conducted by the State.”

Counsel also cited a passage in Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others (supra) where Majanja J stated:-

“102. The right to be provided with material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.”

8. Also the case of Republic v Raphael Muoki Kalungu [2015] eKLR where it was held that whatever information or evidence that may come into the possession of the prosecution in the course of the trial ought to be disclosed and supplied to the defence to avoid trial by ambush.

9. Counsel for the State/Applicant also relied on the case of Republic v Catherine Mutheu Ndung’a & Another [2019] eKLR where after a change of prosecution counsel the court found it “plausible that he did not realize until very late that the investigating officer had not recorded a statement.

10. Counsel submitted that no prejudice will be suffered by the respondents if the prosecution is allowed to introduce the evidence as they will be given a chance to recall and cross examine the witnesses if they so wish. Counsel contended that for the trial court to reach a just determination it is duty bound to evaluate the evidence as a whole and hence this application should be allowed.

11. The application is vehemently opposed and the common thread running through the submissions of counsel for the Respondents is that:-

“a) This matter has proceeded for twelve years, and the prosecution has not closed its case yet.

b) At least thirty-five witnesses have testified in the matter, with each witness relying on a voluminous bundle of documents that had been supplied to the defence counsel before the trial had begun.

c) The documents that the prosecution seeks to produce have always been in the possession of the investigating officer and it beg belief that the prosecution has sought to produce the documents at the very tail end of the trial.

d) The production of the additional documents will prompt the re-calling of some of the witnesses who have already testified.

e) This will only have the effect of delaying and de-railing the conclusion of this matter.

f) Two of the accused persons in this matter have had charges withdrawn against them, and the production of additional documents cannot assist the trial now.”

12. It is contended that before the trial commenced all the advocates for the accused persons were served with a voluminous bundle of documents and so far thirty-five witnesses have testified based on those documents; that the evidence that the prosecution seeks to introduce has always been in the possession of the investigating officer and it is surprising that they seek to produce them at the tail end of the trial; that recalling witnesses will only have the effect of delaying and derailing the conclusion of the trial and moreover charges have been withdrawn in respect to some of the accused persons. It is contended further that granting this application will prejudice the respondents and that it will be an affront to the right to fair hearing granted to all accused persons under the constitution.

13. Counsel for the 4th Respondent in particular submitted that the right to fair trial is non-derogable, that it is an absolute right and it cannot be compromised at the altar of convenience. Counsel cited the following cases: -

· Joseph Ndungu Kagiri v Republic [2016] eKLR where the court stated:-

“Article 50(2)(j) correctly interpreted means that an accused person should be furnished with all the witness statements and exhibits which the prosecution intends to rely on in their evidence in advance. The sole purpose of doing so is so is to avail the accused person sufficient time and facilities to enable him prepare his defence and challenge the prosecution’s evidence at the opportune time both in cross-examination and in his defence. This provision must then be read together with Sub-Article 2(c) which provides that every accused person has right to a fair trial which includes the right to have adequate time and facility to prepare a defence.

The latter cannot be met if the accused is not furnished with the evidence the prosecution intends to rely on ahead of the trial. If this goal is not met, it means that the court shall be misinterpreting the letter and spirit of the supreme law of the land thereby belittling the Constitution and the very purpose for which it was intended. Courts must therefore be very keen in ensuring that this provision is adequately given regard to so as to ensure that the rights of an accused person are not violated. “

· Director of Public Prosecutions v Peter Aguko Abok & 35 others [2020] eKLR where it was stated:-

“From the plain reading of Article 50(2)(b) and (j), prosecution has a legal and binding obligation to supply to the defence all material evidence in its possession which it intends to rely on to enable the defence prepare its defence adequately. The rationale behind this provision is to avoid practice by ambush. It is meant to put both the prosecution and the defence on equal footing so that none is caught by surprise.

......................

It is trite that, supply of evidence the prosecution intends to rely on is not a one stop- shop kind of adventure. The exercise is an ongoing process. It is obvious that, disclosure can be before the hearing or trial commences or during the trial depending on the circumstances of each case or discovery of new evidence which could reasonably not be expected or be available at the start or commencement of the trial.”

· Thuita Mwangi & 2 others v Ethics and Anti-Corruption Commission and 3 others [2013] eKLR where the court stated that disclosure is a continuous process and noted “The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right when the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.”

· Director of Public Prosecution v David Mwiraria (deceased) & 6 others (supra) where the court stated: -

“Disclosure cannot be endless without justification. The process of disclosure during the trial must meet certain criteria inter alia;

i.The additional evidence is not intended or likely to ambush the defence;

ii.It is not intended to fill in the gaps created by the defence;

iii.The notice is sufficient for the defence to prepare adequately;

iv.The intended evidence could not have been reasonably available or foreseeable before commencement or early stages of the trial. (Emphasis supplied)

· The Canadian case of Republic v Stinchcombe [1991] 3 SCR 326 where the court held:-

"In indictable offences the Crown had a legal duty to disclose all relevant information to the defence. The fruits of the investigation which were in the position of the Crown were not its property for use in securing a convictionbut were the property of the public to ensure that justice was done. Thedefence were under no obligation to assist the prosecution, or makereciprocal disclosure, and was entitled to assume a purely adversarial roletowards the prosecution. Arguments advanced by the Crown - the absence of a duty to disclose that such a duty would impose onerous new obligationson prosecutions resulting in delays, and would allow the defence to tailor its evidence to conform with the information disclosed — were not convincing. Failure by the prosecution to disclose would impede the ability of the defence to make full answer and defence, a common law right whichwas subsequently included in the Canadian Charter of Rights and Freedoms and was one of the pillars of the criminal justice system which ensured that the innocent were not convicted. The obligation to disclose was a continuing one and was to be updated when additional information wasreceived. The material to be disclosed included not only that which the Crown had intended to introduce but also that which it had not. Allstatements obtained by the prosecution from persons who had providedrelevant information were to be disclosed to the defence regardless of whether or not they were going to be called as Crown witnesses, Where statements did not exist, other information, such as notes, were to be disclosed or, where there were no such notes the name, address, occupation of the witness and all information in the possession of theprosecution relating to any relevant evidence that the person could give were to be supplied to the defence. "

14. Counsel submitted that the evidence sought to be introduced by the Applicant is not new but has always been in its possession and it would be detrimental and prejudicial to the accused as it would open the doors for the prosecution to introduce evidence at any time during the trial and this could be subject to abuse. Counsel asserted that although there is no express statutory provision governing the timelines and the process of disclosure, there are sufficient guidelines in the constitution and case law to safeguard the rights of the accused. Counsel urged this court to dismiss the application.

Issue(s) for determination

15. Since the State/Applicant seeks a review of the trial court’s ruling which rejected its application to introduce new evidence at the tail end of the trial the issue for determination is whether the prosecution/applicant should be allowed to introduce that evidence.

Analysis and Determination

16. It is not in dispute that the trial of the accused persons/Respondents commenced in the year 2009. It is also not in dispute that over thirty-five witnesses have testified so far. It is also trite that the duty of disclosure owed to the accused persons/Respondents in this case is a continuing one. Counsel for the respondents have in their submissions conceded that disclosure of both inculpatory and exculpatory information or evidence should continue throughout the trial. This is the dicta in the cases cited by both sides and I agree entirely with it. The question then is whether the applicant’s decision to introduce new evidence at the stage it applied to do so ought to be allowed; whether it is an affront to the respondent’s right to fair trial?

17. The right to fair trial is one of the rights that cannot be limited. In other words, the right is non-derogable (seeArticle 25(c) of the Constitution.)

18. The right to fair trial is guaranteed under Article 50 of the Constitution. Article 50(2) states that every accused person has the right to a fair trial which includes the right inter alia:-

· To have adequate time and facilities to prepare a defence (Article 50 (2)(b).

· to have the trial begin and conclude without unreasonable delay (Article 50(2) (e).

· to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence (Article 50(2) (j).

19. It is the contention of Counsel for the Respondents that should this application be allowed the above rights will have been violated.

20. I have considered the ruling of the trial magistrate, the grounds for the application both on its face and in the supporting affidavit, the rival submissions and the cases cited and it is my finding that while the duty of disclosure is continuous there is also a limit. Disclosure cannot be endless and late disclosure must be justified. This accords well with the principle that litigation must come to an end. The prosecution cannot also be allowed to use disclosure to fill in gaps in their case. More importantly the evidence not disclosed at the pre-trial stage but which is intended to be disclosed in the course of the trial must be new evidence or information that was not available to the prosecution in the early stages of the trial but is made available during the trial. My so saying finds supports in the holding in the Cholmondeley case (supra) that the duty continues during the pre-trial period and during the trial itself, “so that if any new information is obtained during the trial it must be disclosed”

and in the case of Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commissions and 3 others (supra) where the court stated:-

“The right to be provided with material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period..... The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking plea......”

Also in the case of Republic v Stinch combe [1991] 3 SCR 326 cited with approval in Republic v Catherine Mutheu Ndungu & Another (supra) where the court noted that :-

“........... The obligation to disclose was a continuing one and was to be updated when additional information was received......”(Emphasis mine)

21. From the above decisions it is evident that the courts have always acknowledged that there are instances when the information will not be available to the prosecution at the early stages of the trial and it ought therefore to be allowed to disclose it to the defence when it becomes available. The circumstances in the instant case are however different as the evidence the applicant is seeking to produce was within its knowledge right from the inception of the case, at the pre-trial stage and in the course of the trial only the prosecution did not disclose it to the defence. It is alleged that a new team stumbled upon the evidence when it reviewed the case following the death of the prosecutor who was in conduct of the case. The evidence was always in the custody of the State/Applicant. It was not new. No explanation whatsoever has been given as to why it was never disclosed to the defence. Whereas in the case of Director of Public Prosecutions v David Mwiraria (Deceased) and 6 others (supra) the court while taking note of the indolent manner in which the prosecution had conducted itself it found that shutting out available evidence was prejudicial to the Kenyan people, I am not persuaded that in this case the same position avails the applicant. The applicant has not demonstrated or given any reason at all that would warrant this court to grant it the orders sought. In the David Mwiraria case the evidence sought to be introduced was evidence that became available to the prosecution during the trial. In this case the evidence was always in the prosecution’s possession. Moreover, each case is decided on its own facts and circumstances. My finding in this case is that it would be grossly unjust and unfair to allow the applicant to introduce the evidence which was within its knowledge and possession for all the 22 years but which it chose not to disclose to the defence. It is one thing to say that one forgot 2 or 3 documents but completely another to state the same for more than 230 documents. It is also not enough to state that the respondents can after all “recall the witnesses”. The right to fair trial includes the right to have the trial begin and conclude without unreasonable delay. Allowing the introduction of more than 230 documents after twenty-two (22) years of trial would most certainly be prejudicial to the respondents who have a legitimate expectation of conclusion of their trial earlier than it would take. Moreover, as held in the Thuita Mwangi and the David Mwiraria cases the matter of disclosure of evidence lies with the trial court and in my view the trial court dealt with the issue as it should have done. I see no illegality, irregularity or mistake in the ruling of the trial court that would warrant me to interfere. Accordingly, this application is dismissed for lack of merit. It is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF MARCH, 2022.

E. N. MAINA

JUDGE