Raga & 2 others v Director of Public Prosecutions & 5 others (Miscellaneous Criminal Application E085 of 2026) [2026] KEHC 7188 (KLR) (26 May 2026) (Ruling)

Raga & 2 others v Director of Public Prosecutions & 5 others (Miscellaneous Criminal Application E085 of 2026) [2026] KEHC 7188 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7188 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E085 of 2026 DR Kavedza, J May 26, 2026 Between Barrack Omondi Raga 1st Applicant Kennedy Kimeli 2nd Applicant Brawmel Ksang Limg’amoi 3rd Applicant and Director of Public Prosecutions 1st Respondent Directorate of Criminal Investigations 2nd Respondent and Martin Kusimba Makhombe 1st Interested Party Amos Mukanya 2nd Interested Party Simon Waswa Wafula 3rd Interested Party Esther Naliaka alias Stacy Naliaka 4th Interested Party Ruling 1.The Applicants filed the application dated 21st May 2026 seeking, inter alia, orders staying proceedings in JKIA Chief Magistrate’s Court Criminal Case No. MCCR E186 of 2025 pending the hearing and determination of the application. They further seek orders compelling the Respondents to disclose and supply the First Police Report/OB Entry recorded at Kikuyu Police Station upon their arrest on or about 12 and 13 November 2025, all witness statements, telephone communication and call data records, triangulation data, GPS and vehicle tracking records relating to motor vehicles KDC 911N and KDB 716K, together with all inculpatory and exculpatory evidence in the possession of the prosecution. 2.The Applicants are charged with trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act. The prosecution alleges that on 12th November 2025, along the Nakuru - Nairobi Highway within Kiambu County, the Applicants jointly trafficked 78 kilograms of cannabis valued at Kshs. 2,340,000 by conveying the same in motor vehicle registration number KDC 911N. 3.The 2nd and 3rd Applicants, who are police officers, contend that they acted on information supplied by the 1st Applicant which led to the interception of the subject motor vehicles and arrest of the Interested Parties. They deny the charges and allege that investigations were selective, incomplete, and designed to suppress exculpatory evidence favourable to their defence. 4.The Applicants submit that the requested OB records, witness statements, call data, triangulation records and GPS tracking data are essential to establish the sequence of events, legality of the arrest, movement of the vehicles, communications between the parties, and the integrity of the investigations. They contend that the prosecution has selectively disclosed inculpatory material while withholding exculpatory evidence contrary to Article 50 of the Constitution. 5.It is further averred that the requested material is necessary to enable the Applicants adequately prepare their defence and effectively cross-examine prosecution witnesses. The Applicants maintain that unless the orders sought are granted, their constitutional right to a fair trial under Articles 25(c) and 50 of the Constitution stands to be prejudiced. 6.I have carefully considered the application, the supporting affidavit, and the submissions by the Applicants. The gravamen of the application concerns the scope and adequacy of disclosure by the prosecution and whether the Applicants’ right to a fair trial under Article 50 of the Constitution has been sufficiently safeguarded. 7.Article 50(2)(j) of the Constitution guarantees every accused person the right “to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” Further, Article 25(c) recognises the right to a fair trial as absolute and non-derogable. The duty of disclosure imposed upon the prosecution is therefore continuous and extends to both inculpatory and exculpatory material. 8.From the material placed before the Court, the Applicants allege that critical material relevant to their defence has not been disclosed by the prosecution. At this stage, the Court is not called upon to determine the veracity of those allegations, but rather whether the concerns raised disclose a legitimate issue touching on the Applicants’ constitutional right to a fair trial under Article 50 of the Constitution. 9.It remains unclear whether the Applicants have been informed of the total number of prosecution witnesses intended to testify, how many witness statements have already been supplied, whether there are outstanding statements yet to be furnished, and when such disclosure is intended to be made. 10.Equally unclear is whether the prosecution intends to rely on telecommunication evidence, including call data records, triangulation data, electronic communication records, GPS data and motor vehicle tracking records. It behoves on the prosecution that of they intend to rely on the evidence, they should supply the evidence to the accused persons in advance in compliance with Article 50(2)(j) of the Constitution. 11.The Applicants have further sought disclosure of the OB extract recorded at Kikuyu Police Station upon their arrest. 12.While the prosecution retains the duty to protect witnesses and preserve the integrity of investigations, that obligation must be balanced against the accused persons’ non-derogable right to adequate disclosure and reasonable access to evidence intended to be relied upon at trial. 13.In the circumstances, and without making definitive findings on the allegations raised by the Applicants, this Court is satisfied that the issues disclosed warrant intervention at this interim stage in order to safeguard the integrity of the trial process and preserve the Applicants’ constitutional rights pending clarification by the prosecution. 14.In the premises, I hereby make the following orders:i.Proceedings in JKIA Chief Magistrate’s Court Criminal Case No. MCCR E186 of 2025 are hereby stayed pending hearing and determination of the application.ii.The applicants are directed to serve the application and order of this court within three (3) days from the date hereof.iii.Upon service, the respondents shall within seven (7) days file a response and clarify the following:a)the total number of intended prosecution witnesses;b)the number of witness statements already supplied and pending statements if any and when they shall be supplied;c)whether telecommunication, triangulation,GPS, vehicle tracking records and electronic evidence shall be relied upon by the prosecution and whether the same has been supplied;d)Why the OB extract has not been disclosed and the reasons for non-disclosure, if any.iv.The Deputy Registrar to ensure the skeleton file of the trial court file is submitted to the High Court within 14 days.v.The application shall be heard inter-partes on 17th June 2026Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY 2026..........................D. KAVEDZAJUDGE