[2017] KEHC 9772 (KLR)
The court found that allowing the prosecution to retrieve exhibits already produced in court for further examination would infringe the respondent's right to a fair trial, as guaranteed under Article 50(2)(j) and Article 25(c) of the Constitution. The respondent's defence was based on the evidence supplied prior to...
Source-derived case information.
- Citation
- [2017] KEHC 9772 (KLR)
- Parties
- Applicant: Republic; Respondent: Abraham Lagat
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 469 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Prosecution's Application for Retrieval of Exhibits
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Exhibit Handling, Fair Trial Rights, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abraham Lagat
Respondent
Procedural Posture
Criminal Revision / Ruling on Prosecution's Application for Retrieval of Exhibits
Legal Issues
- 1 Whether the prosecution can retrieve exhibits already produced in court for further examination during an ongoing trial.
- 2 Whether allowing the retrieval of exhibits would infringe the respondent's right to a fair trial under Article 50(2)(j) and Article 25(c) of the Constitution.
- 3 Whether the timing and stage of the trial affect the propriety of granting the prosecution's application.
Ratio Decidendi
The court found that allowing the prosecution to retrieve exhibits already produced in court for further examination would infringe the respondent's right to a fair trial, as guaranteed under Article 50(2)(j) and Article 25(c) of the Constitution. The respondent's defence was based on the evidence supplied prior to trial, and permitting the prosecution to alter or supplement its case at an advanced stage would prejudice the respondent. The court also relied on precedent that exhibits, once produced, become the property of the court and should not be released until the case and any appeals are concluded. The prosecution's application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The prosecution's application to retrieve exhibits from court is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
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