[1985] KEHC 86 (KLR)
The court found that the prosecution failed to prove that the nails examined by the quality controller were the same as those taken from the appellant's factory, as there was no evidence that the person who took the samples was present at their examination or identified the exhibits in court. The absence of proof of...
Source-derived case information.
- Citation
- [1985] KEHC 86 (KLR)
- Parties
- Appellant: Gordhandas Dharamshi & Brothers Limited; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1419 of 1984
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Standards Act Offences, Chain of Custody, Evidence Procedure, Manufacturing Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gordhandas Dharamshi & Brothers Limited
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the nails examined were the same as those taken from the appellant's factory.
- 2 Whether the chain of custody for the nail samples was established.
- 3 Whether the convictions under the Standards Act were safe in the absence of proof of possession.
Ratio Decidendi
The court found that the prosecution failed to prove that the nails examined by the quality controller were the same as those taken from the appellant's factory, as there was no evidence that the person who took the samples was present at their examination or identified the exhibits in court. The absence of proof of an unbroken chain of custody rendered the convictions unsafe. The court held that the defence's failure to object to the production of the nails as exhibits did not amount to acceptance of their identity or possession, and the prosecution's failure to establish these elements was fatal to its case. Consequently, the convictions on all seven counts were quashed, and the...
Court Disposition
appeal_allowed
Orders
- Convictions on all seven counts quashed.
- Sentences and orders set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 1419 OF 1984
GORDHANDAS DHARAMSHI &
BROTHERS LIMITED................................................APPELLANT
VERSUS
REPUBLIC............................................................RESPONDENT
(Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo)
JUDGMENT
Gordhandas Dharamshi and Brothers Ltd were convicted by a learned District Magistrate II, Nairobi, of seven counts of manufacturing for sale steel wire nails, contrary to section 9(2) and section 9(4) read together with section 15(1) of the Standards Act (cap 496). PW 1, Fida Gulam, a Senior Controller with the Kenya Bureau of Standards, testified that he visited the appellant’s factory on March 12, 1983.
The appellant company manufactures steel wire nails and the witness took samples of different sizes of nails which did not appear to conform to the required standard. He visited the factory again several times and lastly on the April 12, 1984. He took samples of nails of seven different sizes, and it is in respect of these samples that the charges were laid. He took about a quarter kilogram of each size of nail and showed them to the director of the company. He then took them for testing and received a report, G43.
This report was prepared by the only prosecution witness, PW 2, George Odera who is a quality controller with the Kenya Bureau of Standards. He testified that he received some nails and compared them with the specifications laid down by the Kenya Bureau of Standards. He produced his report and also produced to court the remains of the samples and explained to the court the faults he found in the nails. That argument was put to the learned magistrate who dealt with it in this way :
“The defence counsel also argued about the claim of possession of the nails. The nails were produced in court as exhibits by PW 2 and the defence not having objected to their production as exhibits then cannot later on allege that the claim of possession was not established.”
By failing to object to the production of the nails the defence cannot have been said to accept that they were the nails taken as samples from the appellant’s factory. The defence did not know at the stage of their production if other witnesses were to be called to establish the claim of possession. The defence cannot anticipate what witnesses are to be called by the prosecution.
PW 1 the person who took the samples did not testify that he was present at their examination by PW 2. He was not shown the nails exhibited by PW 2 in court. There was no proof that the nails examined by PW 2 were the nails taken as samples by PW 1. In the absence of that proof the convictions are unsafe. I quash the convictions in all seven counts. The sentences and orders paused thereon are set aside and the fines, if paid, must be repaid. Orders accordingly.
Dated and delivered at Nairobi this 18th day of February, 1985.
D.SCHOFIELD
JUDGE