[2015] KEHC 8490 (KLR)
The court held that while the statement by the deceased is relevant and admissible under section 33(a) of the Evidence Act, the prosecution has a constitutional and ongoing duty to supply the defence with all statements it intends to rely on. The failure to provide the statement earlier does not render it...
Source-derived case information.
- Citation
- [2015] KEHC 8490 (KLR)
- Parties
- Applicant: Republic; Defendant: Amos Omondi Arego
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Murder Case 15 of 2013
- Procedural Posture
- Criminal Trial / Ruling on Admissibility of Evidence
- Outcome
- Statement admitted; proceedings adjourned for defence preparation.
- Legal Topics
- Admissibility of Evidence, Accused Rights, Disclosure Obligations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Amos Omondi Arego
Defendant
Procedural Posture
Criminal Trial / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether the deceased's statement is admissible despite not being previously supplied to the defence.
- 2 Whether admitting the statement would prejudice the accused's right to a fair trial.
Ratio Decidendi
The court held that while the statement by the deceased is relevant and admissible under section 33(a) of the Evidence Act, the prosecution has a constitutional and ongoing duty to supply the defence with all statements it intends to rely on. The failure to provide the statement earlier does not render it inadmissible. Any potential prejudice to the accused is mitigated by granting the defence sufficient time to study the new statement and, if necessary, recall witnesses for cross-examination. Therefore, the statement is admitted as evidence, and the proceedings are adjourned to allow the defence to prepare accordingly.
Court Disposition
Statement admitted; proceedings adjourned for defence preparation.
Orders
- The statement by Calnix Ouma Adero is admitted as exhibit No. 4.
- The case is adjourned to enable the defence to study the statement and inform the court if it wishes to recall any witness for cross-examination.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
HCCR (MURDER) CASE NO. 15 OF 2013
BETWEEN
REPUBLIC ………………………………… PROSECUTOR
AND
AMOS OMONDI AREGO ……………...……… ACCUSED
R U L I N G
The investigating officer, PC Edwin Nyongesa testified that he recorded a statement from the deceased CALNIX OUMA ADERO on 6th July 2011 before his death. Before its production, counsel for the accused, Mr Kisera, objected to its production on the ground that the document had not been supplied as part of the bundle forwarded to him by the prosecution on 30th April 2014. He had never seen the document and prayed that it should not be admitted as it would be highly prejudicial to the accused.
Ms Ongeti, counsel leading the prosecution, expressed surprise that the statement had not been forwarded to the defence as it is the first statement in her schedule of statements and the investigating officer alluded to the said statement in his own statements.
The issue herein concerns admissibility of an otherwise relevant document. Under section 33(a) of the Evidence Act (Chapter 80 of the Laws of Kenya), the statement by a person who is dead concerning the matter in issue is relevant and admissible. The issue then is whether I should allow the defence to be ambushed by production of the deceased’s statement.
Article 50(2)(j) of the Constitution provides that the accused must be supplied with all the statements the prosecution intends to rely on in order to be able to prepare his defence. This duty it has been held inThomas Patrick Cholmondeley v RepublicCA Crim. Appeal No. 116 of 2007 [2008] eKLR and Dennis Edmond Apaa and Others v Ethics and Anti-Corruption Commission Nairobi Petition No. 317 of 2012 [2012]eKLR to be a continuous one and is applicable throughout the trial. A document is not inadmissible merely because it was not forwarded to the defence at the commencement of the proceedings. The purpose of this obligation on the prosecution is to enable the accused prepare his defence and any prejudice in the circumstance is removed by giving the defence sufficient time to study the new statements or to recall any relevant witnesses.
In the circumstances, I hold that the statement by Calnix Ouma Adero is admissible and it is now marked as exhibit No. 4.
The case is adjourned to enable the defence study the same and inform the court whether it requires to recall any witness for purposes of cross examination in that connection.
DATED and DELIVERED at HOMA BAY this 9th day of July 2015
D. S. MAJANJA
JUDGE
Ms Ongeti, Prosecution Counsel, instructed by the Director of Public Prosecutions for the State.
Mr Kisera instructed by Omonde Kisera and Company Advocates for the accused.