[2006] KEHC 507 (KLR)
The court held that, despite the witness having taken the photographs and delivered the film to the scenes of crime offices, there was no evidence as to who processed the film, whether that person was gazetted, or whether a certificate in the prescribed form existed. The strict requirements of Section 78 of the...
Source-derived case information.
- Citation
- [2006] KEHC 507 (KLR)
- Parties
- Applicant: Republic; Defendant: Francis Njuguna Kimani
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 10 of 2005
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Photographic Evidence
- Outcome
- Objection to admissibility of photographs upheld; witness not qualified to produce the photographs.
- Legal Topics
- Admissibility of Evidence, Photographic Evidence, Evidence Act Section 78
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Njuguna Kimani
Defendant
Procedural Posture
Criminal Case / Ruling on Admissibility of Photographic Evidence
Legal Issues
- 1 Whether photographs taken of the deceased's body are admissible as evidence without compliance with Section 78 of the Evidence Act.
- 2 Whether the witness who took the photographs is competent to produce them in court.
Ratio Decidendi
The court held that, despite the witness having taken the photographs and delivered the film to the scenes of crime offices, there was no evidence as to who processed the film, whether that person was gazetted, or whether a certificate in the prescribed form existed. The strict requirements of Section 78 of the Evidence Act had not been met. Therefore, the witness was not qualified to produce the photographs as evidence, and the objection to their admissibility was upheld.
Court Disposition
Objection to admissibility of photographs upheld; witness not qualified to produce the photographs.
Orders
- The witness is not qualified to produce the photographs as evidence.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI
Criminal Case 10 of 2005
REPUBLIC.………….……………..…………..PROSECUTOR
VERSUS
FRANCIS NJUGUNA KIMANI……………………ACCUSED
RULING
In the course of his testimony, P.C. Joseph Ngetich was in the process of producing photographs taken of the body of the deceased in this case.
Mr.Muranje for the accused objected arguing that the requirements under Section 78 of the Evidence Act have not been satisfied. For the state, Mr.Ogoti submitted that the pictures were taken by the witness, hence he was competent to produce them.
Section 78 of the Evidence Act provides
“78. (1) In Criminal Proceedings a certificate in the form in the schedule to this Act, given under the hand of an officer appointed by order of the Attorney General for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be a admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein”
Before photographs can be produced in a criminal trial as evidence, the same must be accompanied with a certificate issued by the person who processed the film. It must be shown that the person issuing the certificate has been appointed by the Attorney-General. The certificate must state the circumstances under which the film was received and how the film was processed. It will also have a certificate that the film has not been interfered with.
I am aware that witnesses are constantly allowed to produce photographs in contravention of the above strict requirements.
In the instant case, although the witness took the photographs himself at the mortuary, and also personally took the film to the scenes of crime offices in Mombasa, there is no indication as to who processed the film and whether he was gazetted. Similarly there is no certificate in the form of the schedule in the Evidence Act.
For these reasons, the witness is not qualified to produce the photographs.
Orders accordingly.
Dated and delivered this 18th day of January, 2006.
W.OUKO
JUDGE
18. 1.06
Coram
W.Ouko, J
Mr.Muranje
Mr.Ogoti
Accused present
Ruling delivered in court.
W.OUKO
JUDGE