[2017] KEHC 2280 (KLR)
The court found that the prosecution failed to discharge its burden under Section 33 of the Evidence Act to establish the circumstances justifying the admission of the receipt as an exception to the hearsay rule. The receipt lacked identifying information such as the name of the maker or the person who allegedly...
Source-derived case information.
- Citation
- [2017] KEHC 2280 (KLR)
- Parties
- Applicant: Republic; Defendant: Euticus Mimano Waithaka
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2011
- Procedural Posture
- Criminal Trial / Ruling on Admissibility of Documentary Evidence
- Outcome
- Objection upheld; production of receipt as exhibit set aside; prosecution to avail maker of receipt.
- Judges
- NA Matheka
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Euticus Mimano Waithaka
Defendant
Procedural Posture
Criminal Trial / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether the receipt (PEXH.7) is admissible as evidence without proof of its maker or origin.
- 2 Whether the prosecution has discharged its burden under Section 33 of the Evidence Act to justify admission of the receipt as an exception to the hearsay rule.
Ratio Decidendi
The court found that the prosecution failed to discharge its burden under Section 33 of the Evidence Act to establish the circumstances justifying the admission of the receipt as an exception to the hearsay rule. The receipt lacked identifying information such as the name of the maker or the person who allegedly issued it, and the witness could not answer questions regarding its origin. The court held that the mere production of the receipt did not satisfy the legal requirements for admissibility of documentary evidence. Consequently, the production of the receipt as an exhibit was set aside, and it was to remain marked for identification only until the maker could be availed for...
Court Disposition
Objection upheld; production of receipt as exhibit set aside; prosecution to avail maker of receipt.
Orders
- Production of receipt as PEXH 7 set aside; it shall remain as MFI 7.
- Prosecution granted opportunity to avail the maker of the receipt for proper production.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HCCRC NO. 34 OF 2011
REPUBLIC………………………………….....PROSECUTOR
- V E R S U S –
EUTICUS MIMANO WAITHAKA……………….....ACCUSED
R U L I N G
During the testimony of P.W.2 he produced a receipt marked PEXH.7 – and immediately after the said production – the defence counsel raised objection to the same. He argued that the authenticity of the receipt is in question as it does not bear any name, with regard to the source, the maker, and even the name of ‘Damaris’ the person alleged to have given it to P.W.2. He urged the court to expunge it from the record and order the prosecution to call its maker.
The prosecution’s response is that the objection is overtaken by events as the receipt has already been produced as exhibit for the prosecution. The prosecution relies on Section.33 (b) of the Evidence Act (Cap 80 Laws of Kenya). The prosecution also argues that the receipt is proof that the items alleged to have been bought by the person who bought them – and that no one would have thought it would be required as evidence.
I have considered the objections by counsel and the response by the prosecution.
First, section 33 of the Evidence Act – the heading is “Statement by deceased persons etc.., when’’ – and then it states –
Statements, written or oral or electronically recorded of admissible facts made by a person who is dead, and who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured,or whose evidence cannot be procured, without an amount of delay or expense which is the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases;
(a)…
(b) made in the course of business
When the statement was made by such person in the ordinary course of business…
(c) …
(d) …
(e) …
(f) …
(g) …
(h) …
S.33 places a burden on the prosecution to establish the facts surrounding the circumstances I have underlined in the quote. The prosecution did not lead need any evidence to show that Damaris is dead, or incapable of giving evidence or her attendance cannot be procured etc.
Clearly even as the prosecutor argues that the production of the receipt has been over taken by events – they themselves have not discharged their burden in complying with the clear provisions of S.33 of the Evidence Act.
In addition – the correct position is that, it is the burden of the prosecution to prove its case beyond a reasonable doubt even if the defence had not raised the objection what, would have been the value of the said receipt as evidence – without complying with the law on the production of documentary evidence?
Nothing stops the court either now or at a later stage from reviewing the said receipt, as a piece of evidence upon which the prosecution was relying on in its case against the accused person.
It is true that the receipt does not bear the name of Damaris, it does not bear the name of the maker, it bears no stamp – its origin – from the face of it is unknown – and the witness in the witness box cannot answer these questions hence as it is only proper that the production of the receipt as PEXH 7 be set aside – and the same remain as MFI 7 – and the prosecution be given the opportunity to avail the maker. It is so ordered.
T. MATHEKA
JUDGE
Ruling delivered this 14/3/2017 in open court in presence of Accused, Mr. A.Kariuki holding brief for Gichuki Mwangi for accused.
Ms. Chebet for State.
Court Assistant Harriet
T. MATHEKA
JUDGE
13/3/2017
Coram – T. Matheka, J
Court Asst. Harriet
Court Prosecutor – Ms. Jebet
Accused absent
Court – production order to issue
Ruling on 14/3/17
T. MATHEKA
JUDGE
14/3/17
Coram – T. Matheka, J
Court Asst. Harriet
Court Prosecutor – Chebet
A. Kariuki for Gichuki for accused
Court – I pray for time to avail the witness to produce the receipt.
T. MATHEKA
JUDGE
Hearing on 27/4/17 for prosecution to avail the witness to produced MFI-7.
T. MATHEKA
JUDGE