https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7516

Kinzani v Republic (Criminal Revision E455 of 2025) [2026] KEHC 7516 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7516 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Revision E455 of 2025 WM Kagendo., J May 15, 2026 Between Matilda Maodo Kinzani Appellant and The Republic Respondent Ruling Introduction And Application 1.Before this Court is the Applicant’s Notice of Motion dated 1st December 2025 seeking revision of proceedings in Criminal Case No. E1462 of 2024 Republic v Matilda Maodo Kinzani before the Chief Magistrate’s Court at Mombasa. 2.The Applicant seeks the following substantive orders:i.Stay of proceedings in the lower court pending determination of the application;ii. Calling for and examining the lower court record for legality, propriety, and correctness;iii. Setting aside the ruling delivered on 24th October 2025 relating to admissibility of electronic evidence;iv. A finding that the trial is defective and a nullity; andv. Any further orders necessary to protect the Applicant’s rights under Article 50 of the Constitution. Applicant’s Case 3.The Application is supported by an affidavit sworn by the Applicant and is premised on several grounds. 4.The Applicant contends that the prosecution relied on a computer-generated document produced through PW3 CI Joseph Kulum without compliance with Section 106B of the Evidence Act, as no proper certificate of electronic evidence accompanied the document at the time of production. 5.It is further alleged that the Defence objected at trial on the basis that: The document lacked proper authentication; It had no lab reference number; It was addressed to a third party (GOK) not involved in the proceedings; and It was produced in circumstances suggesting possible fabrication to fill evidential gaps. 6.The Applicant argues that the trial court erred in law by admitting the document and directing that the Defence cross-examine on it, thereby violating the right to a fair trial under Articles 50(2)(c), (j), and (k) of the Constitution. 7.The Applicant further submits that there was non-disclosure or late disclosure of the certificate and login credentials, amounting to trial by ambush and denial of adequate preparation time. 8.The Applicant prays that this Court sets aside the ruling, expunges PW3’s evidence, and orders a retrial or recall of PW3. Respondent’s Case 9.The Respondent opposes the application and submits that the impugned certificate and electronic evidence were properly produced during trial and subjected to cross-examination. 10.It is contended that any complaint regarding timing of disclosure does not amount to a constitutional violation unless prejudice is demonstrated. 11.The Respondent further argues that revisionary jurisdiction is limited and cannot be used as a disguised appeal. 12.It is the Respondent’s position that the trial court acted within its discretion and that the proceedings are regular. Issues For Determination 13.The Court identifies the following issues:i.Whether the admission of the electronic evidence and certificate was procedurally irregular;ii. Whether there was violation of Article 50(2)(j) on disclosure;iii. Whether any irregularity occasioned prejudice warranting revision; andiv. What orders should issue. Analysis Nature of Revisionary Jurisdiction 14.Revision is a supervisory jurisdiction aimed at correcting illegality, impropriety, or material irregularity. It is not an appellate rehearing. 15.See Martin Mavuti Kituyi v Republic HCCR Revision No. 27 of 2013 and Republic v Samuel Gathuo Kamau [2016] eKLR where the courts emphasized that revision is not a substitute for appeal. Electronic Evidence and Section 106B 16.Section 106B of the Evidence Act provides mandatory requirements for admissibility of electronic evidence. 17.The Court of Appeal in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR held that compliance with Section 106B is mandatory to ensure authenticity and integrity of electronic records. 18.Failure to comply may render electronic evidence inadmissible unless cured in accordance with law. Substantive Justice, Fair Trial and Disclosure 19.The Constitution under Article 50 guarantees a fair trial, including the right to disclosure under Article 50(2)(j). 20.However, courts are equally enjoined to administer substantive justice over procedural technicalities under Article 159(2)(d). 21.In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] eKLR, the Supreme Court held that courts must prioritize substantive justice over procedural technicalities. 22.The principle against trial by ambush has been recognized, Nicholas Kiptoo Arap Salat (2014), eKLR, where the Court emphasized equality of arms and fairness in disclosure. 23.However, courts have also consistently held that there is no rigid statutory time limit for disclosure, and what is required is reasonableness and absence of prejudice and irregularities that do not occasion prejudice do not vitiate proceedings. 24.Similarly, in Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, it was held that the key question is whether the accused had a fair opportunity to challenge the evidence. Findings on Record 25.The Court has reviewed the lower court record and notes that the certificate and electronic evidence were ultimately produced and subjected to cross-examination. 26.However, the record is not entirely clear as to whether prior service of the certificate and was effected before production, particularly in light of an intervening adjournment. 27.This creates procedural uncertainty regarding compliance with disclosure obligations. 28.Nonetheless, no concrete prejudice has been demonstrated by the Applicant beyond the assertion of procedural irregularity. Determination 29.Having considered the pleadings, submissions, and authorities, the Court finds as follows:i.The trial court did not act without jurisdiction or in excess of jurisdiction;ii. Any irregularity in disclosure has not been shown to have caused substantial prejudice;iii. The trial, when viewed in its entirety, remains fair; andiv. The threshold for full revisionary intervention has not been met. Orders 30.Accordingly, the Court makes the following orders:The Judiciary of 4/5i.The application for revision is hereby dismissed.ii.However, the ruling of the trial court relating to the admission and reliance upon the certificate and login credentials is hereby set aside.iii.The evidence of PW3 is hereby expunged from the record.iv.PW3 shall be recalled for fresh testimony and cross-examination.v.The prosecution shall ensure full and prior disclosure of all electronic evidence, including the certificate and login credentials, before the recall of PW3.vi.The trial court shall proceed with the hearing in strict compliance with Article 50 of the Constitution. Conclusion 31.The Court reiterates that what is frowned upon in criminal proceedings is not mere procedural imperfection, but trial by ambush that results in actual prejudice. Where evidence is ultimately tested in open court and no prejudice is demonstrated, courts are enjoined to uphold substantive justice over technical objections. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY 2026.HON. LADY JUSTICE W. K. MICHENIJUDGESIGNED BY/FOR:HON. LADY JUSTICE WENDY MICHENI