[2014] KEHC 2076 (KLR)
The court declined to determine the application for extension of time because the supporting affidavit was deposed by counsel for the accused, who is not the appropriate person to swear such an affidavit. The court held that counsel cannot be subjected to cross-examination unless he ceases to act for the accused,...
Source-derived case information.
- Citation
- [2014] KEHC 2076 (KLR)
- Parties
- Applicant: Mary Atai Mung'au; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 94 of 2014
- Procedural Posture
- Criminal Case / Ruling on Application for Extension of Time for Exhumation Order
- Outcome
- Application for extension of time not determined; supplementary affidavit ordered.
- Judges
- A Mshila
- Legal Topics
- Exhumation Orders, Affidavit Evidence, Postmortem Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Atai Mung'au
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Extension of Time for Exhumation Order
Legal Issues
- 1 Whether the court should grant an extension of time for the exhumation order previously issued.
- 2 Whether an affidavit in support of the application can be properly deposed by counsel for the accused.
Ratio Decidendi
The court declined to determine the application for extension of time because the supporting affidavit was deposed by counsel for the accused, who is not the appropriate person to swear such an affidavit. The court held that counsel cannot be subjected to cross-examination unless he ceases to act for the accused, which would compromise the defence. The court therefore ordered that the accused herself file a supplementary affidavit to support the application, specifying the details of the exhumation and postmortem, and deferred determination of the application until proper evidence is provided.
Court Disposition
Application for extension of time not determined; supplementary affidavit ordered.
Orders
- The accused shall file and serve a supplementary affidavit in support of the application for extension of time for exhumation and preparation of a second postmortem report within twenty one (21) days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO.94 OF 2014
MARY ATAI MUNG'AU............................................APPLICANT
VERSUS
REPUBLIC...........................................................RESPONDENT
RULING
The only issue for determination relates to the extension of time of the Order for Exhumation made by Hon. Lady Justice H. Mulwa. The reasons given are that the exercise was not conducted due to logistical problems and the time limit of one day.
The supporting affidavit to the application for extension is deposed by the Counsel for the Accused, Mr. Steve Onyango Kabita
It is trite law that one who deposes to the contents of an affidavit ought to be subjected to cross-examination.
For the reason stated above, this court is of the view that Counsel for the Accused is not the best suited person to make such an affidavit as the exhumation and subsequent Postmortem report will definitely form a crucial part of the defence's case and the said Counsel, will not be capable of being subjected to cross-examination unless, he steps down and ceases to act for the Accused.
At this juncture, I shall therefore refrain from making a determination on this application and instead order that the Accused files a Supplementary Affidavit to support the application for extension of time for the order sought for exhumation and preparation of 2nd Postmortem Report, by who, when, where and the costs of such an exercise.
The Supplementary Affidavit shall be filed and served upon the DPP and Counsel holding watching brief within twenty one (21) days from the date hereof.
It is so ordered.
Dated, signed and Delivered at Nakuru this 21st day of October, 2014.
A. MSHILA
JUDGE