[2009] KEHC 3484 (KLR)
The court found that the appellant was denied a fair trial because he was not provided with documentary evidence in the possession of the complainant, which he needed to cross-examine the prosecution's witness. This denial of access to evidence constituted a fundamental breach of the right to a fair trial. The court...
Source-derived case information.
- Citation
- [2009] KEHC 3484 (KLR)
- Parties
- Appellant: Joachim Abok Adingo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 116 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Fair Trial Rights, Stealing by Servant, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joachim Abok Adingo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was denied a fair trial due to lack of access to documentary evidence needed for cross-examination.
- 2 Whether the proceedings before the Resident Magistrate should be set aside and a retrial ordered.
Ratio Decidendi
The court found that the appellant was denied a fair trial because he was not provided with documentary evidence in the possession of the complainant, which he needed to cross-examine the prosecution's witness. This denial of access to evidence constituted a fundamental breach of the right to a fair trial. The court agreed with the appellant's submissions and the respondent's concession, holding that the proceedings before the Resident Magistrate were fatally flawed. As a result, the court set aside the proceedings and ordered a retrial before a different magistrate of competent jurisdiction.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The proceedings before Mr. M.O. Obiero, Resident Magistrate, are set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal Case 116 of 2007
JOACHIM ABOK ADINGO ………….………………………….APPELLANT
VERSUS
REPUBLIC ………………………………………………………….REPUBLIC
J U D G M E N T
Joachim Abok, the appellant herein, is before the Chief Magistrate’s Court facing a charge of ten counts of stealing by servant contrary to section 281 of the penal. On 24th day of July 2007, the case proceeded for hearing. The first witness to testify was Joseph Maithya Mululu (P.W.1). He was the Internal Auditor of Habo Group of Companies, the complainant herein. At the end of P.w.1’s evidence in chief, Mr. Odhiambo learned advocate for the appellant, applied for P.W.1 to be stood down until the following documents namely:
i)Computer print out for the Chief Cashier for the year 2006
ii)Emergency Cash Register
iii)Bank Statements for the months of September, 2006, October and November, 2006
iv)Cash book for Petty Cash Voucher for daily payments
v)Cash Book for Cheques received and paid Petty Cash Account
vi)Copies of any other exhibit or documents the prosecution will rely on the case before Resident Magistrate’s Court
are availed in court. The application was heard and dismissed. Subsequently, the appellant applied for adjournment to enable him appeal against the dismissal order. The application for adjournment was also rejected and the case proceeded to hearing. Being dissatisfied with the aforesaid decision, the appellant preferred this appeal.
On appeal, the appellant has put forward six (6) grounds. In sum, the appellant has stated that he was not given a fair trial. Mr. Monda, learned Senior State Counsel conceded the appeal on that ground. He however beseeched this count to order for a retrial.
I have considered the arguments of both the learned Senior State Counsel and Mr. Odhiambo, appellant’s learned counsel. I have also critically examined the proceedings of 24the July 2007. It is obvious from the record proceedings that the appellant was denied certain documentary evidence which he needed to use to cross-examine the prosecution’s witness (P.W.1). Those documents were not within the possession of the appellant but were in the possession of the complainant. I agree with the appellant’s submission that there can never be a fair trial if the aforesaid documents are withheld by the complainant. I am satisfied that the learned Senior State Counsel rightly conceded to this appeal.
The appeal is allowed. Consequently the proceedings taken before Mr. M.O. Obiero, learned Resident Magistrate are hereby set aside. The case is to be retried afresh before another magistrate of competent jurisdiction other than Mr. M.O. Obiero on priority basis.
Dated and delivered at Mombasa this 21st day of May 2009.
J.K. SERGON
J U D G E
In open court in the presence of Mrs. Umara h/b Monda for Republic
N/A Appellant.