[2023] KEHC 24574 (KLR)

Republic v Athman (Criminal Case E011 of 2022) [2023] KEHC 24574 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24574 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E011 of 2022

A. Ong’injo, J

October 12, 2023

Between

Republic

Prosecutor

and

Yunus Athman

Accused

Ruling

1. The ruling herein is in respect to production of a witness statement by PW20 as an exhibit for another witness by the name Albert Wekesa aged around 18 years who was killed on 22. 5.2022 and who had ferried the accused to the scene of crime.

2. According to PW20, the deceased witness had recorded the statement dated 16. 9.2019 and that PW20 together with Annerose Mwaura were present at Mtongwe Trading Center. PW20 further informed court that the statement was countersigned on every page by himself.

3. Mr. Wangila Advocate for the accused opposed production of the statement on the basis that they wanted to cross examine the person who recorded it to test its veracity, and that Mr. Karega who was jointly charged with the accused did cover the gap of an eye witness.

4. Mr. Ngiri for the State submitted that he relied on Section 33 of the Evidence Act which gives an investigating officer power to produce documents made by a person who can no longer be available to testify. That the investigating officer recorded the statement which was supplied to the defence. He therefore prayed that the statement forms part of the prosecution evidence.

5. Section 33 of the Evidence Act provides: -Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appear to the court unreasonable, are themselves admissible in the following cases: -(a)relating to cause of deathWhen the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;(b)made in the course of business when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;(c)against the interest of maker when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;(d)an opinion as to public right or custom when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;(e)relating to existence of relationship when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons at whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;(f)relating to family affairs when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;(g)relating to a transaction creating or asserting, etc., a custom when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13(a);(h)made by several persons and expressing feelings when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

6. In Republic v John Ng’ang’a Njeri[2018] eKLR, Ngugi, J. held as follows: -Article 50(2)(k) of the Constitution guarantees to every Accused Person the right to “adduce and challenge evidence.” There are certain situations where statements of witnesses who are not available can be admitted as evidence. This only applies where such statements meet three criteria:a.The witness must be unavailable (through death; physical infirmity; mental illness; absence from the jurisdiction, and so forth);b.The statement must have sufficient indicia of reliability; andc.The statement must be admissible vide a statutorily created exception to the hearsay rule or where the statement or evidence has been subjected to cross-examination or an opportunity for such cross-examination was made available to the Accused Person or that the statement was given under oath.

7. The statement of the deceased witness cannot therefore be admitted herein as evidence pursuant to Section 33 of the Evidence Act. The statement does not relate to the cause of his death or any of the circumstances of the transaction which resulted in his death. Additionally, it does not meet all the three criteria as was held by Ngugi, J. above.

8. In consideration of the above authority, this court therefore finds that the objection has merit and it is upheld.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 12TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMr. Wangila Advocate together with Ms. Seif Advocate for the AccusedMr. Tenge Advocate W/B for IPOAAccused persons present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. Ngiri: In the circumstances of the ruling, I wish to close the prosecution’s case as the investigating officer has already testified.Mr. Wangila: I wish to file submissions for no case to answer in 30 daysOrder: Mention on 13. 11. 2023 to confirm submissions filed.HON. LADY JUSTICE A. ONG’INJOJUDGE12. 10. 2023