[2022] KEHC 2303 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION- MILIMANI

CRIMINAL CASE NO. E 010 OF 2021

REPUBLIC...................................................................................PROSECUTOR

VERSES

N0. 241569 PC KEAH NYUNDOalias MREFU...............................ACCUSED

RULING

1. The serious bone of contention herein relates to documents to be supplied to the defence by the State/DPP following an application by learned counsel for the defence, Mr. George Kithi. The State furnished the defence and Counsel representing the victims, Ms. Julie Soweto, with documents/Statements to be relied on during trial; but, it is urged for the accused that some documents are yet to be furnished which include:

· The Investigation Diary.

· A copy of the death certificate of Jackline Mugure Maina (Deceased).

· The duty roster of police officers at Kamukunji Police Station for the period between January – March 2021.

· The covering report compiled by IP. Benjamin Mugambi and P.C. Kiptoo.

· CCTV footages.

2. The State through learned counsel Mr. Okeyo urged that they had supplied relevant material they intend to rely on in prosecuting the case. On the question of the Investigation Diary, he submitted that the defence was seeking one conducted by the Directorate of Criminal Investigations (DCI) while they were relying on the Investigation Diary prepared by Independent Policing Oversight Authority (IPOA) just like the statements, the basis upon which the accused was charged, and if they insisted on getting it, they could get it from DCI.

3. On the issue of the death certificate, although learned counsel, Ms Soweto undertook to provide it once available, it was urged by the State that they were relying on the Post Mortem Report but not the Death Certificate as per the practice in prosecution of murder cases.

4. Further, it was urged by the defence that when IPOA adopted the case from DCI, it ceded responsibility, therefore, pursuant to Article 50 of the Constitution, all evidence, either inculpatory or exculpatory must be availed.

5. I have duly considered submissions of all parties herein. The law guarantees an accused person fundamental rights which should be given due regard unless and/or until he is found guilty. Since no guilt can be presumed until the charge is proved to the required standard, the court should not be viewed to be prejudiced against the accused; and, according to Article 50(2) (j) of the Constitution an accused person has the right to be informed in advance, of the evidence the prosecution intends to rely on and to have reasonable access to it. This is intended to ensure he prepares adequately for trial. The accused has the right to know what evidence the prosecutor has against him.

6. In the case of Hussein Khalid & 16 Others vs. Attorney General & 2 Others [2019] eKLR, the Supreme Court of Kenya stated that:

“ … Indeed, it is salutary practice for the trial Court to satisfy itself that an accused person has all the reasonable facilities for his defence and the prosecution discloses all documents before commencement of trial. However, an accused person has an obligation to bring it to theattention of the Court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial. “

7. The apex court was persuaded by the holding of Ngugi J, in the case of Republic vs. Francis Muniu Kariuki [2017] eKLR), where he stated that:

“Our case law has now established without a doubt that it is the Prosecution’s duty to provide the witness statements to an Accused Person and the Trial Court’s duty to ensure compliance with the constitutional requirement. Article 50(2) (c) and (j) are quite clear and the Courts have said as much: the right to adequate time and facilities for the preparation of one’sdefence includes the right to receive beforehand the evidence that the Prosecution intends to adduce against the Accused.At a minimum, this right includes the right to receive a copy of the charge sheet, witness’ statements and copies of any documents which will be relied on at the trial.”(Emphasis mine)

8. At common law it has been argued that the prosecution should disclose both relevant and irrelevant material that the prosecution intends to rely on even if it may exonerate the accused person. In the case of Republic vs. Ward (1993)2 ALL ER 557, the Court of Appeal in England stated that:

“The prosecution’s duty at common law is to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence,required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses…”

9. In the case of Antony Watuku Kibandi vs. Republic (2020) eKLR, Kimaru Jwas confronted by a similar situation and he had this to state:

“This court agrees with the prosecution that it cannot be compelled by this court to avail to the Applicant evidence which DOES NOT constitute part of the evidence that it will rely on to prosecute its case against the Applicant. The prosecution can only avail tothe Applicant what it is under constitutional and legal obligation to provide. If the Applicant wishes to rely on other evidence which is not within the prosecution’s possession, he has to lay sufficient basis for the trial court to consider whether or not such other evidence has any relevance to the case at hand. The request for documentary evidence not in the possession of the prosecution cannot be granted. The Applicant is at liberty to pursue the avenues available to him under the Evidence Act to have the said documents adduced into evidence at the appropriate time.”

10. According to the Constitution of Kenya, 2010, it behooves the prosecution to disclose evidence to be relied on in the course of the trial, a duty that should be discharged during pre-trial conference to enable the defence prepare for the case adequately and/or in the course of trial where the accused should be accorded time to interrogate and also have adequate time to prepare for the defence. Evidence to be relied on by the prosecution must be disclosed because it is the basis of the investigative process that results into charges being brought.

11. The upshot of the above is that since the provisions of Article 50 (2) (j) of the Constitution limits the duty of the prosecution to supply the defence with what is relevant and what it intends to rely on, the prosecution cannot be compelled to furnish what

is not in its possession and what it shall not be relying on. As earlier ordered, the prosecution is however directed to furnish the defence and the counsel for the victim with all documents to be relied on.

12. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY,THIS 9TH DAY OF FEBRUARY, 2022.

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Court Assistant – Mutai

Accused

Mr. Okeyo for the State

Ms. Oyosi holding brief for IPOA

Ms. Jacqueline Njoroge holding brief for Julie Soweto for victims

Mr. Kithi for Accused.