https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7894

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **CRIMINAL REVISION NO. E037 OF 2026** **ISAAC KIPKURUI ROP………………………………………APPLICANT** **-VERSUS-** **DIRECTOR OF PUBLIC POSECUTIONS………………RESPONDENT** **RULING** 1. The Applicant herein approached this court through a Notice of Motion dated 28th April, 2026, seeking orders as follows; 2. ***Spent.*** 3. ***That pending hearing and determination of this application, the Honourable Court be pleased to stay proceedings of Nyahururu Magistrate Court Criminal Case MCCR/e137/2026 – Republic v Isaac Kipkurui Rop.*** 4. ***That the Honourable Court be pleased to stay proceedings of Nyahururu Magistrate Court Criminal Case MCCR/E137/2026 – Republic v Isaac Kipkurui Rop.*** 5. ***That the Honourable Court be pleased to order for a revision of the directions and orders issued on 27th April, 2026 by the Honourable Trial Magistrate in Nyahururu Magistrate Criminal Case MCCR/E137/2026 – Republic v Isaac Kipkurui Rop.*** 6. ***That the Honourable Court be pleased to order the Respondent to supply the Applicant (through his advocate on record) copies of the video evidence the prosecution intends to rely upon within seven (7) days of the date of this order, on such conditions as this Honourable Court may deem fit to impose.*** 7. ***That the Honourable Court be pleased to grant any other order that it deems fit.*** 8. ***That the costs of this application be provided for.*** 9. The application is premised on grounds that; 10. ***That the Applicant is charged before the Nyahururu Magistrate court in criminal case MCCR/E137/2026 with an offence under the Computer Misuse and Cybercrime Act which carries a potential sentence of twenty-five (25) years imprisonment.*** 11. ***That on 27th April, 2026, the Honourable Trial Magistrate issued directions that the prosecution shall not supply to the Applicant the video evidence it intends to rely upon, and that the Applicant may only visit the Office of the Director of Public Prosecutions (ODPP) to view the said evidence.*** 12. ***That the said criminal case has been scheduled for hearing on 30th April, 2026, which is imminent, denying the Accused sufficient time to prepare for his case.*** 13. ***That the impugned directions amount to a denial of reasonable access to evidence as guaranteed under Article 50(2)(j) of the Constitution.*** 14. ***That the nature of the evidence is digital videos and photographic evidence, which requires detailed review, analysis, and preparation by the Applicant’s advocate to conduct effective cross – examination.*** 15. ***That a mere ‘viewing’ at the ODPP without the ability to copy or retain the evidence renders the trial fundamentally unfair and violates the Applicant’s right to adequate facilities to prepare a defence under Article 50(2)(c) of the Constitution and its right to challenge evidence under Article 50(2)(k).*** 16. ***That the prosecution has its own forensic expert who has had full access to the said videos to prepare their case. It is only fair that the Applicant’s advocate be supplied with the same evidence to prepare the defence and to effectively cross - examine the prosecution’s expert.*** 17. ***That the Respondent has not sought any lawful alternative, such as confidentiality order, redaction, or controlled disclosure under court supervision, to balance its concerns with the Applicant’s constitutional rights.*** 18. ***That owing to the urgent circumstances and timelines of this revision application, the Applicant has not been able and will not be capable of accessing the orders of the Honourable Magistrate, before the hearing of the trial court on 30th April, 2026 and thus prays to this Honourable Court to exercise it revision powers to call upon the trial court file.*** 19. ***That unless the orders herein prayed for are granted, the Applicant shall suffer substantial loss and irreparable prejudice as his advocate cannot meaningfully prepare for trial, review the evidence in detail, or conduct effective cross – examination.*** 20. ***That no prejudice will be suffered by the Respondent as it will still present its evidence, and the Applicant undertakes to abide by any conditions this Honourable Court may impose.*** 21. ***That it is in the interest of justice that the orders set out in the application are granted by the Honourable Court.*** 22. The application is further supported by an affidavit deposed by Mr. Isaac Kipkurui Rop, the Applicant, who depones that he requested to be furnished with copies of the videos to enable him prepare for the trial, review the evidence in detail and conduct effective cross – examination and the prosecution did not propose any alternative measures such as confidentiality undertaking, redaction, password protection, or controlled access under court supervision. 23. That submissions were made on disclosure of the videos and photos and it became apparent that an order existed directing the prosecution not to share the said videos and photos and it was not to his knowledge. 24. That the court directed that he should not be supplied with the videos but could visit the office of the Director of Public Prosecutions (ODPP) to view evidence. 25. That the directions by the court are illegal, unreasonable and they violate the constitutional rights of the Applicant. That the evidence being digital, it requires detailed review, analysis and preparation. That the court did not consider any less restrictive alternative to blanket refusal such as supplying the videos on a password protected drive, requiring him not to copy, or distribute the videos or redacting any genuinely sensitive portions. 26. In response thereto, the Respondent filed a replying affidavit deponed by learned Prosecution Counsel, Ms. Anastacia Mumbe Wanyonyi where she states that the court considered parties competing positions on disclosure and issued lawful directions on how the video and photographic evidence may be accessed. That the Respondent maintains that the court’s directions governing disclosure of the digital evidence including the Applicant/Accused attending at the ODPP to view the said evidence and the prosecution not to supply copies at that stage/without conditions were grounded on considerations that include safeguarding of evidentiary integrity and the sensitive nature of the materials, directions and are designed to prevent uncontrolled dissemination of the digital content. 27. That viewing of evidence through ODPP is access as envisaged by **Article 50(2)(c) and (j) of the Constitution** and revisionary powers cannot substitute the trial court’s management discretion where the trial court has addressed disclosure. 28. The application was disposed off through written submissions. The Applicant through learned counsel, Mr. Kimosop, submits that the jurisdiction of the court is to revise the incorrectness, illegality and impropriety of any finding. Reliance is placed on ***Gichuhi v Republic (Criminal Revision E354 of 2024) [2025] KEHC 9076 (KLR)*** where they rely on the case of ***Joseph Nduvi Mbuvi v Republic [2019] eKLR*** stated that; ***“In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”*** 1. That directions of the trial court were legally incorrect, violated **Article 50(2)(j) of the Constitution;** and **Section 25 (c) of the Constitution** where the right to trial is unalienable. That although **Section 42 A of the Criminal Procedure Code** gives authority to limit supply of evidence a 5 Judge Bench declared it unconstitutional in ***Petition No. 628 of 2014 consolidated with Petition No. 630 of 2014 and 12 of 2015 Coalition for Reform and Democracy – CORD & 2 Others v the Attorney General*** where it was held as follows; ***“We agree fully with the Courts’ sentiments above and we also note that Article 25 of the Constitution confirms this fixed seat of the right to a fair trial. Consequently, attempts to curtail this right, whether by legislation or in the course of criminal proceedings, must always be frowned at. The same way that it is the responsibility of a judge to ensure that proceedings are conducted in an orderly and proper manner which is fair to both the prosecution and the defence and in adherence to the Constitution is the same way it is the responsibility of the Legislature to ensure that the right to fair trial, as a fundamental right, is not derogated from through legislation.”*** 1. Also relied on is the case of ***Republic v Musa Kwemoi [2013] KEHC 5178 (KLR)*** where the court stated as follows; ***“It is a constitutional requirement that the prosecution should disclose in advance to the accused of the evidence they intend to rely on in the case. This requirement entails disclosure of full and material details of the evidence, (including exonerating evidence), to be relied upon by the prosecution in the case in order to enable the accused to prepare for his defence.”*** 1. That viewing the video and images at the ODPP offices does not constitute reasonable access to facilitate preparation by the Accused person and his advocate 2. It is the submission of the Respondent/Prosecution that revisionary jurisdiction cannot be invoked merely because a party is dissatisfied with discretionary or procedural directions lawfully issued by the trial court. That in ***Director of Public Prosecutions v Peter Aguko & 35 Others [2020] eKLR*** the court emphasized that the High Court supervisory jurisdiction should not be exercised in a manner that unnecessarily interferes with ongoing criminal proceedings absent clear illegality, impropriety or miscarriage of justice. And, that the Applicant has failed to demonstrate any illegality or jurisdictional error in the impugned directions. 3. That on the question of compliance with **Article 50(2)(c),(j) and (k) of the Constitution,** the Prosecution fully complied with disclosure obligations by availing, the Applicant and his advocates opportunity to inspect and review the material under supervised conditions. 4. That the Applicant has deliberately conflated “reasonable access” with an absolute entitlement to possess copies of the impugned child sexual abuse material. Reliance in this regard is placed on the case of ***Dominic Kariuki v Republic [2018] eKLR*** where the court held that disclosure obligations may be satisfied by permitting inspection and access where circumstances justify limitations on copying and dissemination. 5. It is further urged that this evidence in question consist of highly sensitive child sexual abuse material (CSAM/OCSEA material) involving suspected exploitation of minors and if released it creates the risk of further circulation and dissemination; the victimization of children depicted in the material; unlawful duplication of contraband evidence; and, compromise of integrity of exhibits. 6. That fair trial is fundamental but the court must balance the rights of the Accused person, victims, witnesses and public interest. And, **Section 42A of the Criminal Procedure Code** recognizes circumstances where certain evidence may be disclosed in a restricted or controlled manner where public interest considerations arise. 7. I have duly considered the application, affidavits in support and opposition and rival submissions. As pointed out the primary objective of revisionary jurisdiction is to correct jurisdictional irregularities, impropriety, illegalities and incorrectness. To do so the High Court must call and examine the order, or finding of the trial court. The supervisory jurisdiction is enacted by statute. **Section 362 of the Criminal Procedure Code** provides 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.*** 1. In the matter giving rise to the application the Applicant is charged with eight(8) counts of child pornography contrary to **Section 24(1)(d) of the Computer Misuse and Cybercrimes Act No. 5 of 2018.** An application was made by the Applicant to be allowed to download evidence. An application that was opposed on grounds that in view of the fact that such evidence was sensitive as the victims are minors. It was proposed by the Prosecution that the Applicant visits the ODPP premises so as to view evidence to be tendered. In that regard the court ruled thus; ***“The videos will be available for viewing at ODPP Nyahururu between now and anytime due to sensitivity of matter(sic) and minors involved tapes won’t be released to defence, R/A 14 days….”*** 1. The instant application emanates from the stated impugned ruling. 2. **Article 50(2)(j)(k) of the Constitution** provide thus; ***(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;*** ***(k) to adduce and challenge evidence;*** 1. An Accused person is guaranteed the right to fair trial which includes the right to reasonable access to evidence that the prosecution intends to rely on. This enables the Accused to prepare for the defence. Courts recognized the importance of disclosure of evidence pre-the current constitution. In ***Thomas Patrick Gilbert Cholmondley v Republic (2008) eKLR*** it was stated that; ***“… it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under… 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.”*** 1. This is a matter where the Prosecution have not declined to disclose evidence they intend to rely on. However, the compliance as required by the Constitution is limited to granting the Applicant and his counsel the chance to examine the material under supervision at the office of the Director of Prosecutions. These conditions would enable them have access and prepare for the defence. They vehemently object to the kind of disclosure directed by the court. 2. The Applicant herein is charged with the offence of child pornography. **Article 53(2) of the Constitution** provides; ***A child’s best interests are of paramount importance in every matter concerning the child.*** 1. In as much as fair trial envisages an Accused person being provided with relevant evidence, the prosecution intends to rely on so as to mount a defence, as correctly submitted by the Respondent, the Applicant faces charges that cannot be trivialized. Evidence to be tendered involves abuse material of children. 2. The victims in the matter are children; who are vulnerable which makes the nature of mater sensitive. The Victim Protection Act calls for calls for protection of the Minor children. In event that pornographic material is disclosed and published or distributed it is equally an offence. Therefore, the court is obligated to supervise the manner of disclosure. The rights of the victim must be balanced against that of the Accused. This is a child certified mater where any sharing of the exhibits is prohibited. 3. This is a case where the trial Magistrate did not misdirect herself in granting restricted disclosure order. The possibility of copying, circulating, or distributing of the images should be guarded. 4. Clearly it is apparent that the order made was correct and proper. There being no illegality disclosed, the application is bereft of merit. Accordingly, it is dismissed in its entirety. 5. It is so ordered. **Dated, signed and delivered virtually this 5th day of June, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**