https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11820

Republic v Kinuthia (Criminal Case 52 of 2019) [2026] KEHC 11820 (KLR) (Crim) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11820 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case 52 of 2019 MW Muigai, J July 23, 2026 Between Republic Prosecutor and Pius Irungu Kinuthia Accused Ruling 1.Statement Of Offence: Murder Contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. 2.Particulars Of Offence: On 7th August, 2019 at Kariobangi, Sonko Rescue Team Cleaning Department within Starehe Sub County within Nairobi County, murdered Susan Wanjiku. 3.The matter commenced in 2019, mental assessment report was produced and he was declared mentally fit. The Prosecution presented witnesses to testify culminating to the evidence/testimony of the Pathologist (PW6) 4.On 14/7/2026, the ODPP/State/Prosecution presented PW6 Dr Grace Atieno Midibo who stated as follows:-"I am a Pathologist by profession within in Ministry of Health, Division of Forensic and Pathology Services. I am familiar with the Maker of the Document. The Report was/is by Dr Peter Ndegwa who retired last year. I have worked Dr Ndegwa for 5 years now. I am conversant with the handwriting and signature. I will read the content of the report and I am ready to be cross-examined. I am ready." 5.Ms Tum ODPP- I am applying for Dr Ndegwa Pathologist ‘s Report to be produced by PW6 who worked with him. Dr Ndegwa is now retired. 6.Mr. Karanja for the Accused: Retirement is not a conclusive reason not to have the maker produce the report Retirement by its self is not sufficient. Dr Ndegwa is a compellable and competent witness to be summoned to attend Court. Am not aware of any difficulties that have arisen and presented to Court to avail the witnesses. Am not comfortable with the evidence to be produced by the witness in Court. Dr Ndegwa should be summoned. 7.Ms. Tum ODPP: I have heard the sentiments of Defense Counsel report to court. It will be difficult to get Dr Ndegwa. We have bonded him on various occasions and as he has not attended Court and it will be difficult to avail the witness he is retired. In the circumstances I pray the court allows the witness to testify in court today. She is ready to comply with summons and testify and to be cross examined. This is a 2019 matter. 8.Mr. Karanja- That there have been numerous attempts to call the Dr. Ndegwa, this is not credible we have never made /caused any adjournment or attempt to avail Dr. Ndegwa. The Court was not furnished with bonds or summons for Dr Ndegwa in this Court or in any other file in Court that a retired witness and direction was that such witness cannot be availed to testify. Let the Maker of the Report/Document come and produce the Report in Court. It is premature to make this application in the 1st instance before calling Dr Ndegwa first .That is all. 9.Ms. Tum ODPP: We have another witness outside ready to testify and we want to know of the Court will allow the witness will testify or not. 10.Court: The Court will deliver Ruling on the issue of Dr Ndegwa to testify and confirm with the next current witness PW 6 is stood down for now. Ruling on production of Pathologist’s Report will be on 20/7/2026. Determination 11.The Court is to determine whether the Post Mortem Report written and filled in by Dr. Ndegwa in 2019 the Police Pathologist should be produced by Dr. Ndegwa or not.I have considered the prosecution’s application to have the bonded witness present in Court on 14/7/2026 and the objection raised by Defense Counsel on production of Post Mortem Report by any other witness other than the maker, Police pathologist who filled in the Report upon conduct of Post Mortem. 12.The Evidence Act provides;Part Iv – Statements By Persons Who Cannot Be Called As Witnesses[Section] 33. Statement by deceased person, etc.,When 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—(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; 13.[Section] 77. Reports by Government Analysts and Geologists(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.. 14.The above provisions address the envisaged situation where formal witness and/or expert witness conducted professional and expert duty and prepared reports and due to circumstances, beyond anyone’s control is unable to present these official documents /reports in Court as evidence. Therefore, to ensure all evidence is presented in Trial and the Defense Counsel is entitled to object, cross examine and /or submit where the same is prejudicial to the Accused person, the law allows similar experts to those who worked with the formal witness may testify on his/her behalf if the witness cannot be availed without delay, extra cost or convenience. 15.In Kilwake v Republic CA 129 of 2014 [2019] eKLR. The P3 form filled in by one Dr. Achoka was presented/produced during trial by Dr. Kisake Mwamu and he underwent cross- examination. 16.In Odeng vsRepublic Cr App 5 of 2013 KECA 523 [2014]eKLR Dr Muhombe’s medical report was produced by Dr Aden Rishawn ( PW5) who was familiar with Dr Muhombe’s hand writing and signature. 17.This case commenced in 2019, to date 7 witnesses have testified the Accused despite grant of bond vide Ruling of 4/8/2024 remains in custody. The body of deceased was identified to Dr Ndegwa by PW5 among other family members who testified that post mortem was conducted on 12/8/2019. He was subjected to cross examination be Defense Counsel for the Accused person. Therefore, Postmortem examination is not contested it is the medical findings and these are contained in Dr Ndegwa’s report Post Mortem Form that was to be produced by Dr Grace Atieno Midibo who worked with Dr Ndegwa. 18.It is also not contested that Dr Ndegwa is retired. The Prosecution submitted in Court that efforts to avail Dr Ndegwa were fruitless. I find it unreasonable to engage in fact finding mission to locate and avail the witness who honorably retired from the Public Service and whose location and attendance if procured availing him would be at great expense and undue delay as the matter spans 8years now. 19.The Accused person’s will be protected by Constitution. The Court is under the duty to expedite trial and at the same time ensure protection of Accused person’s right to fair trial.Article 50 (2) of the Constitution provided that :“Every accused person has the right to a fair trial, which includes the rights-(c)to have adequate time and facilities to prepare a defense;(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence." 20.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.The Defense Counsel shall have the Post Mortem Report to prepare for Defense cross -examination upon Pw6 testifying by reading the contents of the Post Mortem report and the defense shall test the veracity of the medical evidence during cross-examination. 21.The right to cross examine the witness(s) further buttresses the constitutional right of the accused to challenge the prosecution evidence at all stages of the trial and whenever evidence 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 20.The Court is obligated to balance the rights of the Accused person to a fair hearing and the Complainant/Victim/public or society’s rights in compliance with the Constitution. 21.Disposition1.The Objection to production of Post Mortem Report by PW6 and only the Maker and Author Dr Ndegwa who is retired is dismissed.2.The Post Mortem Report shall be produced by PW6After Defense is served with the Report to prepare for Defense on next hearing date.3.The matter shall be mentioned before DR Criminal Division for receipt of Ruling as we head to close of Term on 13/8/2026.Hearing on 12/10/2024. RULING DELIVERED SIGNED & DATED IN OPEN COURT-CRIMINAL DIVISION -MILIMANI ON 23/7/2026VIRTUALLY/PHYSICALLY.M.W. MUIGAIJUDGE