[2014] KEHC 6860 (KLR)
The court found that the applicant had satisfied the requirements for admissibility of electronic evidence under section 106B(2) of the Evidence Act, having established the source and authenticity of the CD video. The court further held that the constitutional imperative of open justice under Article 50 of the...
Source-derived case information.
- Citation
- [2014] KEHC 6860 (KLR)
- Parties
- Applicant: Masoud Salim Hemed; Respondent: Director of Public Prosecution; Respondent: Inspector General; Respondent: Kenya Police Service; Applicant: Okiya Omtatah Okoiti; Respondent: Attorney General & Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 7 & 8 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Admissibility of Video Evidence and Open Court Hearing
- Outcome
- Application for in camera proceedings declined; CD video evidence admitted and to be replayed in open court.
- Judges
- EM Muriithi
- Legal Topics
- Right to Fair Trial, Open Justice, Admissibility of Evidence, Production of Electronic Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Masoud Salim Hemed
Applicant
Director of Public Prosecution
Respondent
Inspector General
Respondent
Kenya Police Service
Respondent
Okiya Omtatah Okoiti
Applicant
Attorney General & Others
Respondent
Procedural Posture
Constitutional Petition / Ruling on Admissibility of Video Evidence and Open Court Hearing
Legal Issues
- 1 Whether the CD video evidence downloaded from the internet is admissible under the Evidence Act.
- 2 Whether the proceedings should be held in camera or in open court in light of constitutional requirements.
- 3 Whether replaying the CD video in open court endangers the rights or safety of police officers shown in the footage.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for admissibility of electronic evidence under section 106B(2) of the Evidence Act, having established the source and authenticity of the CD video. The court further held that the constitutional imperative of open justice under Article 50 of the Constitution outweighed the respondents' request for in camera proceedings, especially as the video content was already in the public domain. The court emphasized that the proceedings were not a criminal trial of any police officers, and any criminal liability would be determined in the appropriate forum. Accordingly, the CD video would be replayed in open court, and witnesses could...
Court Disposition
Application for in camera proceedings declined; CD video evidence admitted and to be replayed in open court.
Orders
- The CD video may be produced as evidence in terms of section 106A of the Evidence Act.
- The CD video shall be replayed in open court.
Full Case Text
Judgment text and source record
35 paragraphs
No. 19
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 7 OF 2014
IN THE MATTER OF: ARTICLE 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 39, 47, 48, 50 AND 51 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF RIGHTS OF FUNDAMENTAL FREEDOMS UNDER ARTICLE 21, 24, 25, 26, 27, 28, 29, 39, 47, 48, AND 50 OF THE CONSTITUTION OF KENYA, 2010
BETWEEN
MASOUD SALIM HEMED ........................................................... PETITIONER/APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION ............................................ 1ST RESPONDENT
INSPECTOR GENERAL .......................................................................... 2ND RESPONDENT
KENYA POLICE SERVICE......................................................................... 3RD RESPONDENT
CONSOLIDATED WITH PETITION NO. 8 OF 2014
OKIYA OMTATAH OKOITI .......................................................... PETITIONER/APPLICANT
VERSUS
THE ATTORNEY GENERAL & OTHERS.................................................... RESPONDENTS
RULING
1. I have considered the testimony of PW2 Hussein Khalid Hamisi the Executive Director of Haki Africa and I am satisfied that he has laid a basis under section 106 B(2) of the Evidence Act for the production of the CD video which he downloaded from the two websites – You-Tube and face-book of information stated to have been presented therein by media houses K24 and Citizen TV – using his HP laptop computer whose serial number he has given. Accordingly, the CD video may be produced in terms of section 106A of the Act.
2. As regards the cross-examination detailed content and presentation and source of the still photographs and video images on the CD, the same will be considered when the court considers the cogency and weight of evidence after presentation of the CD video.
3. The request by the respondent in camera proceedings is declined on the Jeremy Bentham’s principle that publicity is the very soul of justice and the public have a right to follow the proceedings, which are great public interest.
4. The interests of persons who may be suspects in Criminal Case no. 314 of 2014 are protected in that this court is not sitting in trial of their charges, which will have to be proved before the court trying the case at the hearing.
5. The police officers who may be shown in the photographs and videos are not on trial before this court. It is only sought to establish in proceedings whether the police have custody of Hemed Salim Hemed. Should any criminal proceedings be preferred against any of the officers, such criminal charges will be subject to trial in the usual manner before the appropriate court.
6. Since the content of the video is already in the public domain through the internet, it cannot be maintained that the replay of the CD will endanger the officers shown in the photographs and video images.
7. It is a constitutional requirement for open trial hearing under Article 50 of the Constitution as follows:
“50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
8. Accordingly, the CD video shall be replayed in open court and witnesses may be called and recalled for cross-examination thereon in public.
Dated, signed and delivered on the 28th February 2014.
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Mr. Abubakar with Mr. Abdalla for the Petitioner/Applicant
Mr. Omutatah, Mr. Muteti with Mr. Ngari for the Respondents
Miss Linda - Court Assistant