https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12261

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HCCR MISC NO. E046 OF 2025** **MISHECK KIMATHI MWITAITI………………………………… APPLICANT** **VERSUS** **REPUBLIC …………………………………….…..………..……. RESPONDENT** **JUDGMENT** 1. **MISCHECK KIMATHI MWITATI** is undergoing trial in the Lower Court having been charged with the offence of malicious damage to property, contrary to **Section 339 (1) of the Penal Code.** 2. The particulars of this offence are that on the 4th day of July 2023 at Kanywee Sub-Location, Makandane Location, in Imenti – Central Sub-County of Meru County, the accused willingly and unlawfully destroyed a house worth Kshs 70,000/- the property of Alex Muriuki M’Mbijiwe. 3. The trial Court heard two witnesses fully and a problem arose when the 3rd witness, who is the Investigating Officer was testifying and attempted to produce photographs taken at the scene as exhibits. The defence protested to the production on the ground that the Officer was appointed by an order of the Attorney General rather than an order of the Director of Public Prosecution, of which was contrary to provision of **Section 78 of the Evidence Act Cap. 80 Laws of Kenya.** The trial Court overruled the objection and the defence preferred to challenge the decision before this Court vide a Notice of Motion dated 21st November, 2025. 4. The Respondent opposed the application of which was canvassed by way of Written Submissions. The Applicant filed submissions dated 16th June, 2026 while the Respondent relied on its ground of opposition. 5. I have considered the application founded on **Section 78 of the Evidence Act, Cap. 80.** The Section presently requires that a certificate accompanying photographic evidence be given under the hand of an officer appointed by order of the Director of Public Prosecutions. 6. The issue is whether photographic evidence becomes inadmissible merely because the Certifying Officer had been appointed by an order of the Attorney General and not by the Director of Public Prosecutions. 7. In my view, the answer is in the negative. Prior to the promulgation of the Constitution of Kenya, 2010 and the establishment of the Independent Office of the Director of Public Prosecution under **Article 157 of the Constitution,** prosecutorial powers were vested in the Attorney General. 8. Appointments lawfully made by the Attorney General pursuant to the then applicable law were not invalidated by the subsequent Constitutional and Statutory transfer of prosecutorial functions to the Director of Public Prosecutions. Such appointments continued to enjoy legal validity unless expressly revoked or otherwise rendered in effective by Law. 9. **Section 78 of the Evidence Act,** as amended, merely substituted the appointing authority to conform with the Constitutional architecture created by **Article 157;** it did not invalidate appointments lawfully made before the amendment. This position was held in the case of **Republic –vs- Abdallah Kahi (2019)KEHC 6644 (KLR).** 10. It therefore follows that the Notice of Motion dated 16th June, 2026 lacks merit and is hereby dismissed. 11. The Lower Court file be remitted back to the trial Court to continue with it’s hearing and determination. 12. HCCR MISC E046/2025 is hereby marked as closed. **DATED AND DELIVERED AT MERU THIS 30TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **30/7/2026** **In the presence of:-** Mr. Makura for the Applicant Ms. Shandora for Prosecution