Republic v Abraham Lagat [2017] KEHC 9772 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.469 OF 2017

REPUBLIC.........................................................APPLICANT

VERSUS

ABRAHAM LAGAT.......................................RESPONDENT

RULING

The prosecution was aggrieved by the decision of the trial court in declining to grant its application to be allowed to retrieve exhibits which had been produced before court for the purpose of having the particular documents taken to the document examiner for the purpose of determining who the maker or makers of the documents were. The prosecution wants the court to exercise its revisionary powers under Article 165(6) of the Constitution and set aside the particular order and substitute it with an order of this court directing that the particular exhibits be released to the prosecution for the purpose of the said exercise. The application was opposed by the Respondent. He questioned the timing of the application since the same was filed before this court more than six months after the trial court had rendered its decision. He agreed with the trial court that once the prosecution had produced the particular exhibits before the court, it becomes the property of the court and cannot be released back to the prosecution.

In Ruling declining the prosecution’s application, the court relied on the case of Simon Okoth Odhiambo v Republic [2005] eKLR where the court held thus:

“As regard the release of exhibits, this was most unfortunate. The prosecutor applied for the release of the exhibit long before judgment was delivered. The court for unexplained reasons granted the application. As we understand it exhibits should never be released by court until it is satisfied that in the case of conviction, no appeal has been preferred and if the appeal has been filed, such exhibits should only be released once the appeal has been heard and determined.”

During the hearing of the application, this court heard oral rival submission made by Ms. Akunja for the State and by Mr. Chesang for the Respondent. Having carefully considered the said rival arguments, and having called for, and perused the trial magistrate’s court’s proceedings, this court takes the following view of the matter:

Whereas the prosecution may at any stage of the proceedings before the close of its case call or adduce evidence in support of its case, in the present application, it was clear to this court that if the prosecution’s application was allowed, it would infringe on the Respondent’s right to fair trial as provided under Article 50(2)(j) of the Constitution that requires and mandates the prosecution to supply the accused with the evidence that it will rely on during trial before the commencement of the trial to enable the accused person adequately prepare his defence.

In the present application, this court notes that the hearing of this case is at an advanced stage. Indeed, eight (8) witnesses have already testified. More than ten (10) documentary exhibits have already been produced. The Respondent’s entire defence is hinged on the prosecution’s evidence that was supplied to him prior to commencement of trial. This court agrees with the Respondent that he would be prejudiced and his right to fair trial which cannot be abridged or limited as provided under Article 25(c) of the Constitution would be infringed if the prosecution’s application for the retrieval from court of documents produced as exhibits is allowed.

An important aspect of this application which was glossed over by the prosecution is the fact that if the application is allowed, a statement will be recorded from the document examiner, and he would be called upon to testify in the case. This court observes that, taking into consideration the advanced stage of the trial, the character and the tone of the prosecution’s case would be completely altered to the detriment of the Respondent who had pegged his defence on the basis of the evidence that he had been supplied by the prosecution prior to the trial of the case.

In the premises therefore, the Applicant’s application lacks merit and it is hereby dismissed. It is so ordered.

DATED AT NAIROBI THIS 7TH DAY OF DECEMBER 2017

L. KIMARU

JUDGE