[2016] KEMC 2 (KLR)

Republic v Itiko & another (Anti-Corruption Case 4 of 2012) [2016] KEMC 2 (KLR) (Anti-Corruption and Economic Crimes) (19 October 2016) (Ruling)

Republic v Reuben Mulwa Itiko & another [2016] eKLR

Neutral citation: [2016] KEMC 2 (KLR)

Republic of Kenya

In the Anti-Corruption Magistrate's Court

Anti-Corruption and Economic Crimes

Anti-Corruption Case 4 of 2012

F Kombo, PM

October 19, 2016

Between

Republic

Complainant

and

Reuben Mulwa Itiko

1st Accused

Geoffrey Kabue

2nd Accused

Ruling

1. By letters dated 3/3/2014 and 13/10/2016, Mr Gachuba, Counsel for the 2nd Accused seeks about 22 documents more specifically named in the said letters, and all which generally comprise of Purchase Orders and Payment Vouchers issued to eleven Suppliers listed therein.

2. In his submission, the documents all relate to a Quotation No. NWC/HQ/034/09-10, issued by the National Water Conservation and Pipeline Corporation, (NWCPC) which according to him, is the substratum of this case.

3. Further according to Mr Gachuba, the documents were raised by two expected witnesses in this matter namely Mr Richard Bii and Petronilla Ogut.

4. Mr Gachuba contends that it is the intention of the 2nd Accused to confront the said witnesses, specifically Mr Bii, with these documents during his testimony, a matter that is also supported by Mr Makundi for the 1st Accused.

5. He reckons that the presence of the documents would make the Court appreciate the case better and further that they are necessary in the interest of a fair trial in this case.

6. According to him, the documents were first sought from the Office of the DPP by letter dated 3/3/2014 which did not receive any response. Mr Warui however informed Court that he has never received the letter.

7. Mr Gachuba further submits that the documents were generated pursuant to the said Quotation, and that it is the legitimate expectation of the Defence, that the Investigator came across them in the course of investigations.

8. When he first raised the matter on 13/10/2016, his contention was that the said documents were, in possession of the prosecution.

9. However upon Mr Warui’s submission in response, that the said Documents are not in fact, not in the possession of the prosecution, but the Corporation (NWCPC), he seemed to change tack and instead sought an Order directed at the Corporation requiring it to release the said documents to the Defence.

10. Mr Gachuba relies on a High Court decision (S.N Mutuku,j)- Republic v Raphael Muoki Kalungu [2015]eKLR

11. The request is supported by Mr Makundi for the 1st Accused.

12. According to Mr Makundi it is surprising for the prosecution to contend in the trial, that the Quotation is illegal and not avail the said documents that were generated under it, in the trial.

13. Mr Warui for the State has countered these arguments by submitting that the requested documents are not in the possession of the Prosecution, and therefore it cannot be required to furnish them.

14. He added that the said Documents, being in the possession of the National Water Conservation and Pipeline Corporation, it is the duty of the Defence to seek them from the Corporation.

15. He also submits that the Prosecution has in this case, discharged its constitutional obligation of furnishing all such documents as it would be relying upon in the trial.

16. He relied in this regard to a High Court decision (Ngenye, j), namely Diana Kethi Kilonzo v Republic [2015] eKLR

17. I have considered these submissions and read the two decisions. Both are recent 2015 cases decided only about 8 months apart, with the Raphael Muoki decision coming up earlier in March 2015.

18. Although the two Courts were confronted with a near similar factual and legal situation, they have taken different directions.

19. In Diana Kethi Kilonzo, Ngenye, j having considered Articles 50(2) paragraphs (c) and (j) of the Constitution, and the decisions cited therein namely George Ngodhe Juma and 2 Others v Attorney General[2003] eKLR and Patrick Gilbert Cholmondeley v Republic [2008]KLR concluded that the obligation of the State could not go beyond the disclosure of evidence that is relied upon. She stated at page 6/8;‘My understanding of Article 50(2) (j) is that the evidence (which includes all exhibits and statements) that the prosecution should disclose is only that evidence that it shall rely on in its case’

20. On the other hand, in Raphael Muoki, S. Mutuku, j having considered the same cited decisions and constitutional provisions, concluded;‘This Court totally agrees with the two decisions’ above and having considered the court’s interpretation of what ‘facilities’ means, and the legal obligation placed on the Prosecution towards the defence, this Court’s view is that the prosecuting Counsel misapprehended the issues when she submitted that the Prosecution does not have a duty to disclose to the defence, evidence the prosecution does not consider relevant and which the prosecution does not intend to use in their case..’

21. In concluding as it did, the Court agreed with the defence submission that in applying the Bill of Rights, it must adopt an interpretation that favours the enforcement of a fundamental right or freedom, which it did with respect to the fair trial right provided in the constitution.

22. In the matter before me, I am persuaded by the reasoning of the Court in Raphael Muoki and do agree that the sub-rights under article 50(2) of the Constitution must be read in the wider context of achieving the objective of a fair trial.

23. In this case therefore, the Prosecution had the duty to disclose the documents sought by the defence, much as they do not deem them relevant to their case. But they would only be so bound, if they had them in their possession, which is not the case.

24. As the stated documents are not in the possession of the Prosecution, I would apply the dictum of the learned judge in Raphael Muoki when she stated;‘Needless to say, I wish to state that there is nothing to stop the Defence, and it owes a duty to its case, to carry out its own investigations over and above what the police did in order to fill up the gaps that the prosecution may have left ...I need not belabour the point that this is crucial to any party because gathering evidence is an integral part of pre-trial preparation..,

25. In this case, the defence has sought the aid of the Court in its own investigation to receive release of documents that it feels are crucial to its defence in the trial.

26. It is in my view, entitled to do so even at this stage, as the Defence is entitled to confront and challenge the evidence adduced by the State against it. In doing so, it may require the information it now seeks. It may later require the witnesses.

27. I therefore agree that I should, and do issue an order directed at the National Water Conservation and Pipeline Corporation to release to Defence Counsel, certified copies of the documents detailed in the letter by Counsel for the 2nd accused herein dated 13/10/2016

28. If for any reason the said documents cannot be released, then the responsible officer in the corporation will be summoned to Court to render an explanation for the record

FELIX KOMBO [MR]PRINCIPAL MAGISTRATE19. 10. 2016DELIVERED IN OPEN COURT THIS 19TH DAY OF OCTOBER 2016