[2016] KEHC 6811 (KLR)
The court held that the prosecution's application to recall the Investigation Officer to produce statements of deceased witnesses was without merit. Section 34 of the Evidence Act applies to evidence given in previous proceedings, not to witness statements, and Section 72 concerns documents whose makers cannot be...
Source-derived case information.
- Citation
- [2016] KEHC 6811 (KLR)
- Parties
- Applicant: Republic; Defendant: Joshua Mworia Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 166 of 2003
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application to Reopen Case and Recall Investigation Officer
- Outcome
- application dismissed
- Judges
- RPV Wendoh
- Legal Topics
- Admissibility of Evidence, Statements of Deceased Witnesses, Fair Hearing, Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joshua Mworia Mwiti
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application to Reopen Case and Recall Investigation Officer
Legal Issues
- 1 Whether the prosecution can reopen its case to recall the Investigation Officer to produce statements of deceased witnesses.
- 2 Whether statements of deceased witnesses are admissible under Section 34 or 72 of the Evidence Act.
- 3 Whether admitting such statements would prejudice the defence and offend the right to a fair hearing.
Ratio Decidendi
The court held that the prosecution's application to recall the Investigation Officer to produce statements of deceased witnesses was without merit. Section 34 of the Evidence Act applies to evidence given in previous proceedings, not to witness statements, and Section 72 concerns documents whose makers cannot be found, which does not include witness statements. Admitting such statements would deny the defence the opportunity to cross-examine the makers, thereby offending the principles of fair hearing and resulting in prejudice to the accused. The application was therefore rejected and dismissed.
Court Disposition
application dismissed
Orders
- The prosecution's application to recall the Investigation Officer to produce statements of deceased witnesses is rejected and dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 166 OF 2003
REPUBLIC …………………………………….....………PROSECUTOR
VERSUS
JOSHUA MWORIA MWITI …………………..……….…….ACCUSED
RULING
After the close of the prosecution case, Mr. Kariuki, Learned Counsel for the State sought to reopen their case and applied to be allowed him to recall the Investigation Officer to produce the statements of deceased witnesses. He purported to rely on Section 34 and 72 of the Evidence Act. The application was opposed by Mr. Mbaabu, Counsel for the accused, who urged that the statement of a deceased witness has no probative value; that there is no provision of law that allows the production of such evidence. Counsel also argued that the application is an afterthought because the Investigation Officer was in court the day before, when the case was heard and the application was not made. Further, Counsel was of the view that the prosecution did not state of what value the statements were; that the witnesses could not be cross examined on the statements and that the same cannot be produced on oath or affirmation; that the Investigation Officer cannot be subjected to cross examination to test the veracity and credibility or truth of the statements. It was Counsel’s view that if that application were allowed, the defence would suffer prejudice.
I have considered the application made by the State Counsel and the objection thereto. The State Counsel’s position is that the witnesses are dead. In my view, if the statements of deceased witnesses were to be produced by the Investigation Officer, the defence would not have the opportunity to cross examine the witness to test the veracity of the statements and also the credibility of the witness. It would result in an injustice to the defence as it offends the tenets of fair hearing.
After the defence Counsel said that the application was not based on any Statute or the Constitution, the State Counsel purported to rely on Section 34 and 72 of the Evidence Act. Section 34 of the Evidence Act deals with admissibility of evidence given in previous proceedings. It is true that this case had been partially heard before other Judges and evidence of some witnesses taken. An application was made to start the case de novo, which the prosecution never opposed. However, Counsel did not apply to have the said evidence already on record to be relied upon. His application was that the Investigation Officer produce the statements of deceased witnesses which does not fall under Section 34 of the Evidence Act. Section 72 of Evidence Act is equally not applicable because it relates to admissibility of documents where the makers cannot be found. Witness statements are not documents. Consequently, the application is without merit and is rejected and dismissed.
DATED, SIGNED AND DELIVERED THIS 23RD DAY OF FEBRUARY, 2016.
R.P.V. WENDOH
JUDGE
23/2/2016