https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8655

Republic v Abuto (Criminal Revision E007 of 2026) [2026] KEHC 8655 (KLR) (19 June 2026) (Revision) Neutral citation: [2026] KEHC 8655 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Revision E007 of 2026 A Mabeya, J June 19, 2026 Between Republic Applicant and George Otieno Abuto Respondent Revision 1.The State has urged that the proceedings and orders of 27/11/2025 by the trial court be reviewed. The background is that the prosecution sought to have a witness, Dr. Ombok appear and produce certain medical records. An objection was raised by the defence counsel on the basis that the said witness did not meet the parameters of sections 33, 48 and 77 of the Evidence Act. 2.The position of the prosecution was that, Dr. Ombok as the incharge and custodian of the P3 Forms and medical records at JOOTRH she was competent to appear and produce medical records the subject of the case. 3.By a ruling made on 27/11/2025, the trial court upheld the objection on the grounds that the Court had declined previously a similar application. Indeed, the trial court quoted its previous ruling verbatim declining such an application. In its said earlier decision, it had declined to allow one Ms. Kezia Tanui, a Clinical officer from testifying on the ground that that witness had not worked with the doctors who had made the records sought to be produced. The trial court did not give any other reason for rejecting Dr. Ombok’s attendance and testifying. 4.It is curious that the trial court did not consider the provisions of the law relied on by the defence to raise the objection. Section 33 (b) of the Evidence Act provides: -“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.”While section 38 of the Act provides: -“An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.”Finally, section 77 (1), (2) and (3) of the Evidence Act provides: -“(1)In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.(2)The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.(3)When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.” 5.The totality of the foregoing provisions is to allow the production of documentary evidence where the makers thereof cannot be found without unreasonable delay. Section 33(b) of the Act would allow statements made in the ordinary course of business. Section 38 of the Act would permit entries in public records made by public servants. Finally, section 77 of the Act permits reports made by, inter alia, medical practitioners. The Court is called upon to presume that the signature is made by the officer purporting to have made the reports. The said provisions are meant to preserve evidence made in ordinary course of business because public officers die, resign or do leave service. Their records cannot be ignored or obliterated. 6.What was before the trial court were medical records made over 10 years ago. They are from a Public institution. The witness was said to be incharge and in custody of those documents which are of a public nature. Why would the Court require one to be familiar with the signatures of medical doctors who may have left the institution many years ago? That would be a travesty of justice. 7.In view of the foregoing, the ruling of 27/11/2025 was made in error. Was irregular, was made without basis and is hereby revised and set aside. Let the said Dr. Ombok appear and properly testify on the alleged documents provided she is able to bring herself within any of the foregoing provisions especially section 77 of the Evidence Act.It is so ordered. DATED and DELIVERED at Kisumu this 19th day of June, 2026.A. MABEYA, FCI ArbJUDGE