[2025] KEHC 5964 (KLR)
The court found that the prosecution is obligated under Article 50 of the Constitution and prior court orders to disclose all evidence it intends to rely on, including photographs. The fact that a new prosecutor is handling the case does not excuse non-disclosure by the State. Two of the four photographs were...
Source-derived case information.
- Citation
- [2025] KEHC 5964 (KLR)
- Parties
- Applicant: Republic; Defendant: Absalom Rabote Agwei; Defendant: Henry Otieno Nyawara; Defendant: Simon Onyango Adoyo; Defendant: John Opiyo Opiyo; Defendant: Charles Onyango Ong'ayo; Defendant: Henry Juma Ogutu; Defendant: James Ochieng Odiyo; Defendant: Gerson Otieno Ochola; Defendant: Abel Omondi Okuku; Defendant: Washington Odhiambo Otieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E021 of 2023
- Procedural Posture
- Criminal Case / Ruling on Evidentiary Objection During Trial
- Outcome
- Objection partially upheld; only two photographs previously disclosed may be identified by the witness.
- Judges
- A Mabeya
- Legal Topics
- Disclosure of Evidence, Right to Fair Trial, Admissibility of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Absalom Rabote Agwei
Defendant
Henry Otieno Nyawara
Defendant
Simon Onyango Adoyo
Defendant
John Opiyo Opiyo
Defendant
Charles Onyango Ong'ayo
Defendant
Henry Juma Ogutu
Defendant
James Ochieng Odiyo
Defendant
Gerson Otieno Ochola
Defendant
Abel Omondi Okuku
Defendant
Washington Odhiambo Otieno
Defendant
Procedural Posture
Criminal Case / Ruling on Evidentiary Objection During Trial
Legal Issues
- 1 Whether the prosecution complied with its obligation to disclose all evidence, specifically photographs, to the defence prior to trial.
- 2 Whether the defence can object to the admissibility of photographs not previously supplied, and whether objections to the quality of supplied photographs can be raised at this stage.
Ratio Decidendi
The court found that the prosecution is obligated under Article 50 of the Constitution and prior court orders to disclose all evidence it intends to rely on, including photographs. The fact that a new prosecutor is handling the case does not excuse non-disclosure by the State. Two of the four photographs were included in a report previously supplied to the defence, and the defence had not objected to their quality at the appropriate time. Therefore, the witness may identify only those two photographs. The other two photographs, which were not disclosed prior to trial, cannot be introduced, and the defence's objection is upheld in respect of those two.
Court Disposition
Objection partially upheld; only two photographs previously disclosed may be identified by the witness.
Orders
- The objection is upheld in respect of the two photographs not contained in the report dated 20/6/2023.
- The witness may identify only the two photographs that were supplied in the report dated 20/6/2023.
Full Case Text
Judgment text and source record
44 paragraphs
Republic v Agwei & 9 others (Criminal Case E021 of 2023) [2025] KEHC 5964 (KLR) (14 May 2025) (Ruling)
Neutral citation: [2025] KEHC 5964 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case E021 of 2023
A Mabeya, J
May 14, 2025
Between
Republic
Prosecution
and
Absalom Rabote Agwei
1st Accused
Henry Otieno Nyawara
2nd Accused
Simon Onyango adoyo
3rd Accused
John Opiyo Opiyo
4th Accused
Charles Onyango Ong'ayo
5th Accused
Henry Juma Ogutu
6th Accused
James Ochieng Odiyo
7th Accused
Gerson Otieno Ochola
8th Accused
Abel Omondi Okuku
9th Accused
Washington Odhiambo Otieno
10th Accused
Ruling
1. The Constitution 2010 came into effect to expand the democratic space of Kenyans. One of the remarkable development and reform introduced was Article 50 which frowns on opaqueness in the prosecution of cased.
2. That Article expanded the rights of an accused person and did away with the hitherto mundane manner in which criminal cased were being prosecuted in this Country. Simply, prosecution by ambush no longer has any space in our system.
3. For this reason, the prosecution is required to, amongst other things, disclose to the defence at the earliest, the evidence it intends to rely on against the accused. In this regard, Courts have developed a system of pre-trial sessions where all disclosures are done. The prosecution supplies all evidential documents in its possession including but not limited to witness statements. It is expected that after pretrials close and trial begins, no more surprises are expected.
4. On 5/9/2023, the Accused were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. They pleaded not guilty. The mater was severally mentioned during pre-trials. During that period, the Court made orders to the effect that the prosecution do supply the defence with all witness statements and documentary evidence in its possession.
5. Believing that all these directions were complied with, the trial commenced on 11/3/2023 whereby 3 witnesses testified. Today, PW4 has testified and was about to identify 4 photographs that were allegedly taken at the scene on the date of the offence. The defence has objected to the witness identifying the same on the basis that the same were never supplied to them. Ms. Kagali for the prosecution submits that she did not know that the earlier prosecutor did not supply the photos. That in any event, 3 of the 4 photos were contained in a ventinary Report dated 20/6/2023.
6. I have considered the objection and the answer thereto. It is no doubt that the right of an accused set out in Article 50 of the Constitution of Kenya are not cosmetic. That Article provide; inter alia, that: -“(2)Every accused person has the right to fair trial, which includes: -a.…b.…j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.…”
7. The Court directed the prosecution to comply with this requirement. It is no defence that now we have a different prosecutor. The prosecution is the same, the State. The actions or inaction of the previous prosecutor binds Ms. Kagali.
8. I have looked at the 4 photos. I have also looked at the report dated 20/6/2023. Two of the 4 photos are contained in the report dated 20/6/2023. The defence objects to the reliance of the photos in that report on the basis that they are blurred. I have gone through the record and nowhere did the defence object to the report on the ground that the photos contained therein were blurred. It is assumed that they were contended with their status and the defence cannot raise that objection now. They should have done so before trial.
9. Further, it has not been denied that the witness statement of PW 4 was not supplied. Or, that he did not refer to the photographs of his statement.
10. Having in mind that PW 4 did refer to some photographs in his statement, two of the photos in the report of 20/6/2023 having been supplied in that report, the witness can identify those two only for whatever evidentiary significance they may have.
11. Accordingly, the objection is upheld in respect of the two phots that are not contained in the Report dated 20/6/2023. It is so ordered.
DATED AND DELIVERED AT KISUMU THIS 14ND DAY OF MAY, 2025. A. MABEYA, FCI ArbJUDGE