[2023] KEHC 19850 (KLR)
The court held that a clinical officer, duly registered and qualified under the Clinical Officers (Training, Registration and Licensing) Act, is competent to render medical services and to give medical evidence under section 77 of the Evidence Act. The court relied on statutory definitions and binding precedent,...
Source-derived case information.
- Citation
- [2023] KEHC 19850 (KLR)
- Parties
- Applicant: Republic; Defendant: Victor Muriuki Muriungi Kiura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E023 of 2021
- Procedural Posture
- Criminal Case / Ruling on Objection to Expert Witness Competence
- Outcome
- objection dismissed
- Judges
- LM Njuguna
- Legal Topics
- Murder Charge, Expert Evidence, Competence of Witnesses, Clinical Officers, Psychiatric Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Victor Muriuki Muriungi Kiura
Defendant
Procedural Posture
Criminal Case / Ruling on Objection to Expert Witness Competence
Legal Issues
- 1 Whether a clinical officer is a competent expert witness for purposes of psychiatric evidence in a murder trial.
- 2 Whether the objection to the competence of PW9 as an expert under the Mental Health Act and Evidence Act should be upheld.
Ratio Decidendi
The court held that a clinical officer, duly registered and qualified under the Clinical Officers (Training, Registration and Licensing) Act, is competent to render medical services and to give medical evidence under section 77 of the Evidence Act. The court relied on statutory definitions and binding precedent, which confirm that clinical officers are authorized to provide such evidence, including in criminal proceedings. Therefore, the objection to the competence of PW9 as an expert witness was without merit and was dismissed. The prosecution is entitled to present its case using such evidence, and the clinical officer's testimony and production of medical records are admissible.
Court Disposition
objection dismissed
Orders
- The objection to the competence of PW9 as an expert witness is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
Republic v Kiura (Criminal Case E023 of 2021) [2023] KEHC 19850 (KLR) (5 July 2023) (Ruling)
Neutral citation: [2023] KEHC 19850 (KLR)
Republic of Kenya
In the High Court at Embu
Criminal Case E023 of 2021
LM Njuguna, J
July 5, 2023
Between
Republic
Prosecution
and
Victor Muriuki Muriungi Kiura
Accused
Ruling
1. The accused person herein was charged with the offence of murder contraryto section 203 as read with section 204 of the Penal Code. The particulars of the offence being that on June 9, 2021at Mutira area, Makengi Location, in Embu West sub county, within Embu county murdered Justin Muchangi Ireri. Upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered.
2. This court was invited by Mr Guantai, counsel for the accused to find that PW9, Erick Bundi was not an expert as provided for under Mental Health Act and for purposes of the Evidence Act as the witness is not a doctor.
3. The learned prosecution counsel, Ms Mbevi opposed the application citing reasons that the witness was a clinical officer who majored in psychiatry and further held a diploma in Mental Health. It was her contention that section 3 of the Mental Health Act No 27 of 2022 defines a Mental Health Practitioner to include a qualified and duly registered psychiatrist under the Medical Practitioners and Dentist Act and the Clinical Officers Training Registration and Licensing Act.
4. Ms Mbevi therefore urged this court to find that the said witness was qualified to testify as a psychiatrist. Reliance was placed on the case of Raphael Kavoi Kiilu v The Republic 2010 eKLR criminal appeal number 198 of 2008 where the court held that a clinical officer is a qualified medical practitioner who can render medical services and give medical evidence under section 77 of the Evidence Act thus therefore, the witness was qualified to testify.
5. I have considered the brief oral submissions by the parties herein. It is trite that this being a criminal matter, it is incumbent upon the prosecution to prove its case beyond any reasonable doubt and therefore, it should be given a chance to do so.
6. The court has looked at theClinical officer Act (Training, Registration and licensing Actcap 260 Laws of Kenya and the definition of a clinical officer is given as follows:-“A person who, having successfully undergone a prescribed course of training in an approved training institution is a holder of a certificate issued by that institution and is registered under the Act… section 7(4) of the Act states“A person who is registered by the council shall be entitled to render medical or dental services in any medical institution in Kenya approved for the purposes of this section by the minister by notice in the gazette”
7. The Act also provides that such an officer may engage in private practice in the practice of medicine, dentistry or health work for a fee.
8. Similarly, the courtin the case of Kyalo Kiswii v Republic [2015] eKLR when addressing the issue of competence of clinical officer had this to say:The issue of whether or not a clinical officer is a competent person to give medical evidence was settled by this court in Raphael Kavoi Kiilu v Republic[2010] eKLR (criminal appeal No. 198 of 2008). In that appeal, it was alleged that a clinical officer was not qualified under the Evidence Act to give evidence in matters relating to sexual offences. The Court held that a clinical officer was in fact, authorized under the Clinical Officers (Training, Registration and Licensing) Act and therefore is fit to give medical evidence…………..We agree with this proposition. A clinical officer, being authorized under the Clinical Officers Act is an authorized person who can render medical services, and further can give medical evidence under section 77 of the Evidence Act. Nothing therefore turns on this ground of appeal as well.
9. From the above, it therefore follows that a clinical officer is a competent witness who can give evidence and further produce a medical record. [Also SeeJoseph Katua Kiatu v Republic [2015] eKLR].
10. It therefore follows that PW9 was not only a competent witness but also one who could produce a medical record as was the case herein.
11. In the circumstances herein, I find that the objection has no merit and the same is hereby dismissed.
12. It is so ordered.
Delivered, dated andsigned at Embu this5th day ofJuly, 2023. L. NJUGUNAJUDGE………………………………………..............for the Accused………………………………………..……………for the StateRULING HCCR E023 OF 2021 Page 2