[2016] KEHC 2201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO.90 OF 2012

REPUBLIC...........................................................PROSECUTOR

VERSUS

GILBERT KAPUE OKETCH......................................... ACCUSED

RULING

1. Gilbert Kapule Oketch is facing trial for the murder of Caroline Mwanza Mutunga. So far 10 prosecution witnesses have testified. The investigating officer was the 11th prosecution witness and took the stand on 20th January 2016 and completed his testimony in chief. He produced several identification documents said to have been recovered from the accused upon arrest. These are:- Kenyan ID in the name of Gilbert Kapule (Exh.8); NHIF card (Exh. 7); Ugandan ID card (blue) (Exh.9); Ugandan Citizen ID (Green) (Exh.11); Kenyan Driving licence (Exh. 12); KASNEB student ID (Exh.13), Standard Group work ID (Exh. 14) and Portrait of the accused (Exh.No. 15).

2. In cross-examination, the witness stated that he had not authenticated the Kenyan and Ugandan identity cards recovered from the accused on arrest. He insisted however that the Kenyan ID card corresponded with other identification documents of the accused and bore the name Gilbert Kapule. The question respecting the identification of the accused prompted the prosecution to make an application during re-examination to be allowed time to authenticate the identity card of the accused. The defence objected to the application and applied that the witness be stepped down to allow the defence to respond more comprehensively to the application. The court allowed the application to step down the witness and directed that the application and objection be dealt with more comprehensively in the next sitting.

3. The prosecution’s submission is that Section 306 of the Criminal Procedure Code allows them to introduce new evidence as they have not closed their case. They further submitted that the new evidence will not cause any prejudice to the accused but on the contrary would be in accordance with Article 50 of the Constitution. They relied on Section 146(3) of Evidence Act as entitling them to produce new evidence at re-examination stage.

4. The defence on its part opposed the application stating that Section 146(3) of the Evidence Act is a procedural law and could not override the provision of Article 50 of the Constitution. Further, the defence submitted that Section 146(3) of the Evidence Act presupposes that the witness would be the one who would tender the identification evidence yet it was only the registrar of persons who could tender such evidence. They argued that since there was no statement from the registrar of persons supplied to the defence in advance, then it would not be fair to allow introduction of new evidence. They relied on the case of Republic V. Kamlesh Mansuklal Pattni High Court Nairobi Criminal Case No. 229 of 2003.

5. In response the prosecution submitted that the names of the accused in the information were the same as those in the Kenyan ID and that PW11 being the investigating officer who sought and obtained the identification documents could not be barred from producing the same as the prosecution had not closed its case.

6. There are 2 issues in this application. The first is whether the prosecution can be allowed to introduce additional evidence at the re-examination stage. The second is whether the identity of the accused was in issue and would, if not resolved at this stage cause injustice to the accused.

7. Article 50 of the Constitution to which the court was referred sets out the fair trial rights of an accused. Of particular relevance to this application is sub article (2) (j) which provides for “the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence” Section 146 of the Evidence Act provides the procedure through which witnesses may be examined. Of particular relevance to this application is Sub Section (3) which provides that “re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.”

8. The concern of the law as set out above is to ensure that an accused is accorded a fair trial and that the prosecution does not ambush an accused with new and unexpected evidence. The procedural safeguard provided by the Evidence Act cited above is to limit the re-examination of a witness to matters raised in cross-examination. The section however does not preclude the prosecution from raising new matters. The only fetter is that new matter can only be raised with the permission of the court and even then the defence must be given the right to further cross-examine on the new matter.

9. Applying the law to this application, and considering the respective submissions of the parties, I find as follows:-

(i) The prosecution has not closed its case and therefore is still entitled to adduce evidence in support of its case.

(ii) That the law allows the prosecution to raise new issues in re-examination but only with the permission of the court.

(iii) That the defence is entitled to further cross-examine the witness on the new matters raised.

On the 2nd issue, I find that the identity of the accused is a matter to be decided on in the ruling on case to answer or in the judgment in the event that the accused is put on his defence. I shall therefore say no more on it at this stage.

10. In the premises, I allow the prosecution to tender further evidence limited to the authentication of the identification documents of the accused. The defence has the right to further cross-examine on the same.

Orders accordingly.

Ruling delivered, dated and signedatNairobithis 26thday ofOctober, 2016.

R. LAGAT-KORIR

JUDGE

In the presence of:-

…………………………:Court clerk

…………………………: Accused

…………………………: For accused

…………………………:For State