https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9528

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **HIGH COURT CRIMINAL CASE 9 OF 2021** **REPUBLIC ………………………………..…..PROSECUTOR** **–VS-** **WASHINGTONOCHIEN** **GONYANGO …………………..……….ACCUSED PERSON** **RULING (4)** 1. The Accused person is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charges are that: On 5th February 2020 at Kioi Soweto in Embakasi East within Nairobi the accused murdered Priscillah Cherono. 2. The Accused person pleaded NOT GUILTY to the charge and trial commenced. 3. The Prosecution commenced before Hon Ogembo J and called 12 witnesses; He took evidence of 10 witnesses and 2 witnesses in this Court. 4. On 3/11/2025; at close of cross examination of PW12 Investigation Officer; the Prosecution applied to include/avail items and produce the set of photographs taken by PC Alfred Kitur at the Accused person’s house who is now deceased. The Prosecution made an oral application for production of the said photographs by recalling PW7 C.I Daniel Musembi to produce these photographs. 5. The parties addressed Court and also filed written submissions on the application as follows; 6. During cross examination of PW12 by Defense Counsel for the Accused person, on 3/11/2025, on photographs he stated the photographs produced in Court 20 photographs -Exhibit 9 [on 22/7/2022] were not in his custody. He was not aware who took these photographs, whether they were serialized or not, he did not take the photographs and did not produce them. As Investigation Officer stated that he took all exhibits collected from investigations and presented them in Court. From the photographs produced and shown none of them show the Accused person’s home, pool of blood,2 mallets, military boots, baby shawl, headdress and handbag, items recovered from the Accused person’s house. These were/are photographs of Avenue Nursing Home of the body of deceased and are dated 5th February 2020. 7. On 13/11/2025, PW12 was recalled for further cross examination, he had no photograph showing the crowd at the scene. He had photographs and were not dated or serialized and there was no Report. The Accused person was charged in 2020 the Photographer died in 2022 and photographs of Accused person’s home were not produced. 8. The Prosecution sought through State Counsel to produce photographs taken by PC Alfred Kitur (deceased) to be produced by the Succeeding Officer who prepared the other photographs Inspector Daniel Musembi (PW7) as they referred to him during the hearing and there would be no prejudice occasioned to the Defense , if he produce the photographs. 9. Defense Counsel objected to production of the said Photographs on grounds that the Pre-Trial ended 5 years ago and the photographs were not provided to the Defense in advance. The last hearing date, the Investigation Officer found these photographs in the Police file and presenting these photographs at this stage will prejudice the Accused person. The ODPP was on a fishing expedition. In cross examination the I/O said these photographs were not processed as the Photographer died. The evidence sought now is to have photographs processed yet even the Certificate was not provided. The Accused person has been in custody for 6 years now and Counsel objected to adjournment of the case and ought to proceed for hearing. The Certificate was made on the day in Court 10. The Court granted parties through respective Counsel to file and exchange submissions for Ruling on the matter. **WRITTEN SUBMISSIONS.** **THE PROSECUTION’S SUBMISSIONS.** 11. The Application is brought under the provisions of **Sections 33 and 78 of the Evidence Act**. The prosecution submit that admissibility of photographic evidence is by the person who took them. But there is an exception when the person is not available. 12. That key to admissibility of photographic evidence is that the person producing evidence must be able to verify that the photographs are the true and accurate representation of what they depict and that the process of producing them was reliable. 13. That C.I Daniel Musembi (PW7) is a Scenes of Crimes Officer who processed photographs which were forwarded him, the witness is best placed to confirm the process the photographs taken used in production. 14. The prosecution also relies on **Article 159 (2) (a) and (d) of the Constitution of Kenya 2010, Section 33 of the Evidence Act** and the case of **State –vs- Nelson Otieno Odira** and submit that photographs depict the scene of crime and form crucial evidence in the case. That form should not be elevated over substance. There are other means of proving the contents and statements made by persons who are deceased and these should be considered. 15. That the accused has the right to cross examine the witness on the integrity of the digital files received and the process of their development. 16. Lastly that the photos are not new evidence but a formal production of what has been on the file. **THE ACCUSED PERSON’S SUBMISSIONS.** 17. The accused in response refer to the testimony of Pw10 and Pw12. That Pw10 testified that Alfred Kitur took the photos and that the photographs were numbered with pen but they did not have serial numbers. 18. He did not have the photographs and the officer, who took them died. The photographs were not produced, 19. That Pw12 C.I Moses Kenga also testified that the scene was photographed and documented on 7/2/2020 but he did not have the photographs. That at the time of death, the officer in charge of processing and preparing the certificate had not processed it and there was no report on the photographs . 20. The accused submits that the report, if any, was not supplied to the defence or produced by the prosecution. 21. That the expert having died before processing and preparing the certificate the photographs are inadmissible in evidence . 22. That the application intends to introduce new evidence and was made after the investigating officer was cross examined by the defense .That the prosecution intends to call additional evidence to fill gaps created gaps by the defence . 23. The accused submits that disclosure of evidence by the prosecution is not supposed to fill gaps and it is also not meant to be an ambush. That the prosecution had sufficient time to prepare the intended evidence. 24. That the issue is whether the evidence was available from the beginning of the trial. 25. The accused submits that the photographs were available for the 5 years that the case had been in court and were not supplied to the defense. The effect is that the accused has been denied time to prepare for his defense in violation of his right to fair trial. 26. Lastly that the new evidence introduced in the case is prejudicial to the defense. The accused did not cross examine other witnesses on the issue and recall of witnesses would cause delay in the trial which could be avoided by the prosecution. 27. The Accused relies on **Articles 50 (2) and 25 of the Constitution** and the cases of **DPP -Vs- David Mwiraria & 6 others (2022) eKLR** and **Joseph Ndungu Kagiri -vs- Republic (2016) Eklr** **ANALYSIS AND DETERMINATION** 28. I have considered the prosecution’s application, submissions made by parties and the proceedings of the case on the issue at hand regarding production of photographs by an Officer other than the one who took the said photographs. **29.** The Prosecution’s case is that the photographs taken by the 1C Alfred Kitur (deceased) can be produced by C.I Daniel Musembi who is also a Scenes of Crime officer and that the photographs were processed by the witness**.** **30.** The accused contention is that firstly, the report and certificate of electronic evidence was not prepared at the time of death C.I Alfred Kitur and the photos are not admissible in evidence. Second that the failure to serve and delay in adducing the evidence is prejudicial to the accused and it denies him chance to prepare for the defense and to cross examine witnesses who have testified before this court. Third that the intended evidence amounts to new evidence meant to fill the gaps noted in the cross examination on the existence of photographs from the scene. **31.** I find that the issues for determination of the prosecution’s application are two-fold: a) Admissibility of photographs by a deceased scene of crime officer. b) Whether allowing the application would be prejudicial to the defense case. Admissibility of photographs taken by the deceased Scene of Crime Officer. 32. **Section 33 of the Evidence Act** provides for cases where the author of statements or reports including electronic evidence is deceased. **Section 33 (b) reads:** ***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, or whose attendance cannot be procured, without an amount of delay or expense which in 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, 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;*** **33. Section 78 of the Evidence Act** particularly provides for admissibility of photographic evidence which must be accompanied by the requisite certificate provided under the First Schedule of the Evidence Act. **34.** In this case, I note that the IC Alfred Kitur (deceased) took photos but he did not process the photos, as the incident in question occurred in 2020 and the Scene visiting officer died in 2022; the certificate was not prepared. Further, the deceased did not write any report or record his witness statement or make any entry or memorandum on the records of this case at the time of his death. **35.** The Accused’s contention is that the absence of the report makes the photographs inadmissible. I find that the report that the referred by the accused falls under **Section 33 (b) of the Evidence Act** to the extent that relates to reports entries memorandum that the deceased made in the course of investigations before he passed on. **36.** Omission of such records or reports does not affect the admissibility of photographic evidence as Section 78 A provides that after production of Photographs and Report; **78A. Admissibility of electronic and digital evidence** ***(1) In any legal proceedings, electronic messages and digital material shall be admissible as evidence.*** ***(2) The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.*** ***(3) In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—*** ***(a) the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;*** ***(b) the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;*** ***(c) the manner in which the originator of the electronic and digital evidence was identified; and*** ***(d) any other relevant factor*** **37.** What is relevant in this case is the omission of the certificate of electronic evidence described under Section 78 (2) as the applicable document that qualifies photographic evidence. The other issue is who the competent witness to produce the photographic evidence. In the case of **State –Vs- Nelson Otieno Odira & Another [2014] eKLR Hon. Majanja J** explained that the photographer is the right witness to produce photographs and certificated but exceptions exist and the court can admit photographic evidence without calling the maker as long as conditions of **Section 78 (2) and (3) of the Evidence Act** are met . **38. Section 78** refers to exception of photographic evidence and enables the court admit photographic evidence without calling the maker; the Judge stated in the Nelson case above; ***“ A reading of section 78 shows that the exception in relation to photographic evidence is specific to the terms thereof. The purpose of section 78 of the Act is to enable the Court admit photographic evidence without calling the maker if certain requirements of the Act have been met. The section is not authority or it does not provide authority for the Director of Public Prosecution to permit only certain officers to take photographs and produce them in evidence. Section 78 deals with production of photographic evidence in court and provides photographs taken by officers may be produced without calling the officer taking the photographs if the conditions specified in the section are met. Hence the requirement of subsection (2) and (3) of the Act which tend to buttress the issue of authenticity of the photographs.”*** **39.** In that case, the contention was whether the investigating officer who took the photographs was competent to produce the photographs. The accused objected to production by the investigating officer who was not authorized by the DPP. The court noted that the photographs can be produced by any officer who took the photos in the same manner primary evidence is adduced and the officer can be cross examined. **40. Section 78 (2) and (3) of Evidence Act discussed in Nelson Odira *supra*** indicates that the certificate must be made by an appointed officer of the DPP. The officer must have prepared a photographic print or enlargement from an exposed film or an electronic and digital medium submitted to him. Section 78 (3) provides for the discretion of the court to summon and examine the person who authored the certificate. **41. In Erick Indimuli Siaya -Vs-. Republic [2016] eKLR, the High Court clarified the provision as follows:** ***“…. understanding of the above provision is that photographic evidence may be admissible in criminal cases on condition that the photographic prints or enlargement have been prepared by an officer appointed by the Director of Public Prosecutions (hitherto by the Attorney General). The officer shall then be required to prepare a certificate to the effect that he produced the prints and enlargements from the exact film or any other annex where they were exposed. The certificate shall accompany the photographs at the time of production.”*** **42.** The prosecution rightly argue that the admissibility of photographic evidence is determined by a witness who can prove the accuracy and processing of the photographs. **43.** It is on record that C.I. Daniel Musembi who is the prosecution’s proposed witness testified before court as PW7 and that the witness produced a bundle of 20 photographs and the relevant certificate as P exhibit 8 and 9 .The witness testified in his capacity as the scenes of crime officer and he produced photographs of the observation room and the deceased body taken during postmortem. **44.** There is no breach if the witness is recalled to produce photographs that he allegedly processed under Section 78 and 78A of the Evidence Act. I have also considered the provision of Section 78 of the Evidence Act and find that the provision does not limit the preparation and production of the certificate to the photographer. It seems that photos can be taken and processed by another officer who is certified and requisite certificates prepared by the processor. Section 78 describes processing as the officer having ; “prepared a photographic print or enlargement from an exposed film.” These facts are apparent in the instant case and there is no breach or violation caused if the witness and the application is allowed. **WHETHER THE ACCUSED WILL BE PREJUDICED .** 45. **Section 78 of the Evidence Act** permits cross examination of the author of the certificate of electronic evidence. The right to cross examine evidence further buttresses the constitutional right of the accused to challenge the prosecution evidence at all stages of the trial and whenever it is introduced. Further , the accused right to be provided and served with the prosecution evidence goes hand in hand with the right to fair trial . The higher obligation is on the prosecution to disclose ,in advance ,all evidence in the case. 46. **Article 50 (2) of the Constitution** provided that : *“****Every accused person has the right to a fair trial, which includes the rights-*** ***(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.*** ***(c) to have adequate time and facilities to prepare a defense;”*** ***(A)*46. Similarly,** the duty to disclose evidence at the Pre-trial stage and was discussed by the Court of Appeal in the case of **Thomas Patrick Gilbert Cholmondeley vs. Republic [2008] eKLR ,while relying on R-Vs-. STINCHCOMBE [1992] LRC (Cri) 68. held** ***“Our understanding of this Canadian decision is that there is a duty on the part of the prosecuting authorities to disclose to an accused person the evidence which they intend to bring before the court in support of their charge. That duty also includes disclosing to an accused person evidence which the prosecution has in their possession but which they do not intend to use during the trial. Such evidence may, if adduced, weaken the prosecution’s case and strengthen that of the defense; whatever may be its nature, the prosecution is still obliged to disclose it to the defense. That duty continues during the pre-trial period and during the trial itself, so that if any new information is obtained during the trial, it must be disclosed.”*** **47. In Dennis Edmond Apaa & 2 Others –vs- Ethics and Anticorruption Commission & Another[2012]eKLR** the Court held as follows on the duty to disclose evidence in the criminal trial : **“The case of R V WARD [1993] 2 ALL ER 557, cited by the Court of Appeal *is clear that the duty of disclosure is a continuing one throughout the trial. Furthermore, the words of Article 50(2)(j) that guarantee the right “to be informed in advance” cannot be read restrictively to mean in advance of the trial.”*** **(B) 48.** In the case of **Joseph Ndungu Kagiri –Vs- Republic [2016] eKLR;** the Court explained that first the duty to disclose should be done in advance during the Pretrial stage and second throughout the trial***. That :-*** ***“Article 50(2)(j) correctly interpreted means that an accused person should be furnished with all the witness statements and exhibits which the prosecution intends to rely on in their evidence in advance. The sole purpose of doing so is to avail the accused person sufficient time and facilities to enable him prepare his defense and challenge the prosecution’s evidence at the opportune time both in cross-examination and in his defense… This means the duty is cast on the prosecution to disclose all the evidence, material and witnesses to the defense during the pre-trial stage and throughout the trial. Whenever a disclosure is made during the trial the accused must be given adequate facilities to prepare his or her defense….”*** **49.** The Accused person’s submission on prejudice is that; the photographic evidence amounts to new evidence and is brought in to seal gaps of the Prosecution case. The evidence on record cross examination of PW12 Investigating Officer by Defense Counsel, he stated that, there were no photographs in Court of Accused person’s house, they were not produced but he was present [at the scene] when they were taken. Clearly, the photographs are not new evidence; they were taken processed but not produced as the Scenes of Crime Photographer IC Alfred Kitur died. 50. The Accused person submitted through Counsel that the evidence of photographs would lead to recall of witnesses and delay of the case. The conduct of Prosecution is by ODPP and if the production of photographs will necessitate recall of witnesses, the Defense Counsel may object to recall of witnesses. The Accused person’s constitutional right to fair trial will be preserved as Article 50 ( c ) & (j) of Constitution and the Defence will be served with the evidence and will be given time to prepare defense to challenge the evidence and the accused will still identify gaps during the ongoing trial. 51. As established in the case-law, the duty to disclose and serve evidence by Prosecution to the Defense does not end at the Pretrial stage but is ongoing as long cross examination is allowed after adequate period to the Defense to prepare and there is no prejudice. here is no bar on the prosecution from receiving additional evidence during trial as long as it is done fairly procedurally and does not amount to abuse of power and miscarriage of justice. **See also Khalid & 16 others -vs- Attorney General & 2 others [2019] KESC 93 (KLR) cited in Benson Khwatenge Wafula –Vs- DPP Petition No E045 of 2024 at paragraph 73 where the Supreme Court held that the DPP, inter alia, [the ODPP]** is “***Not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial.”*** **52.** In the upshot I find that the photographic evidence taken by Scene Visiting Officer I C Alfred Kitur and died photos processed to be produced by Officer who took over and processed them with Report in compliance with **Section 78A of Evidence Act.** 53. That prejudice has not been established by the accused. The prosecution case has not been closed and the accused right to cross examine the witness and related evidence is still intact. The Court shall ensure compliance of Article 50 of Constitution. 54. **The Prosecution’s application is allowed as prayed.** **RULING DELIVERED SIGNED & DATED 30/6/2026 IN OPEN COURT AT CRIMINAL DIVISION HIGH COURT MILIMANI PHYSICALLY/VIRTUALLY.** **M.W. MUIGAI** **JUDGE**