[2013] KEHC 194 (KLR)
The court held that Section 34(1) of the Evidence Act permits the admission of evidence from deceased witnesses in a retrial, provided the statutory conditions are met: the parties are the same, the adverse party had the opportunity to cross-examine, and the issues are substantially the same. The judge found that a...
Source-derived case information.
- Citation
- [2013] KEHC 194 (KLR)
- Parties
- Applicant: Republic; Defendant: Lamson Ole Kupele
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 69 of 2006
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Prior Evidence at Retrial
- Outcome
- Application for admission of prior evidence allowed, subject to production of death certificates.
- Judges
- DO Ohungo
- Legal Topics
- Admissibility of Evidence, Retrial Procedure, Use of Previous Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lamson Ole Kupele
Defendant
Procedural Posture
Criminal Case / Ruling on Admissibility of Prior Evidence at Retrial
Legal Issues
- 1 Whether evidence from deceased witnesses in the initial trial can be admitted in the retrial under Section 34(1) of the Evidence Act.
- 2 Whether sufficient proof of the witnesses' deaths or unavailability has been provided to satisfy the statutory requirements.
Ratio Decidendi
The court held that Section 34(1) of the Evidence Act permits the admission of evidence from deceased witnesses in a retrial, provided the statutory conditions are met: the parties are the same, the adverse party had the opportunity to cross-examine, and the issues are substantially the same. The judge found that a retrial is a 'subsequent proceeding' within the meaning of the section. However, the court expressed concern about the lack of formal proof of the witnesses' deaths, noting that a death certificate should be produced to satisfy the requirements of Section 34(1). The court allowed the evidence to be admitted but directed that the prosecution provide the death certificates to...
Court Disposition
Application for admission of prior evidence allowed, subject to production of death certificates.
Orders
- The evidence of Kimunyak Ole Kupele and Koringo Ole Koua from the initial proceedings is admitted in this retrial.
- The prosecution is directed to produce the death certificates of the two witnesses to fulfill the requirements of Section 34(1) of the Evidence Act.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO.69 OF 2006
REPUBLIC ........................................... PROSECUTOR
VERSUS
LAMSON OLE KUPELE ............................... ACCUSED
RULING
This matter is a retrial following an appeal by the accused. The retrial was ordered by Waki, Onyango Otieno and Nyamu JJJA after it became clear that the initial trial was partly conducted with the aid of assessors and partly without. The hearing of prosecution witnesses was conducted with assistance of three assessors, but the defence case and summing up before judgment was delivered were conducted without the aid of assessors. That was the procedural omission and had nothing to do with the testimony of the witnesses or the witnesses themselves.
The State Counsel, Mr. Marete, has moved this court under provisions of the Evidence Act, to allow the evidence of:-
Kimunyak Ole Kupele
Koringo Ole Koua
as received in the initial proceedings to be admitted in this matter. The reason for such request is that the two witnesses are deceased although the fact of death has not been confirmed by way of a death certificate.
It is explained that due to the current heavy rains and the state of the roads in Narok, the death certificate may not be quickly obtained without causing undue delay.
Section 34 of the Evidence Act addresses admissibility of evidence given in previous proceedings and provides that:
“34(1) Evidence given by a witness in a judicial proceedings is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding for the purpose of proving facts which it states in the following circumstances:-
Where the witness is dead or cannot be found, or is incapable of giving evidence..........................................
And where, in the case of a subsequent proceeding,
The proceeding is between the same parties.......
The adverse party in the first proceeding had the right and opportunity to cross-examine and;
The questions in issue were substanding the same in the first as in the second proceeding.
I think the scenario obtaining here is what is contemplated by these provisions. I have referred to Miss Gitau, with the greatest of respect is splitting hairs, a subsequent proceeding is any proceeding which comes after the initial one and in my view, includes a re-trial – it is a trial subsequent to the first proceedings. I would under the circumstances allow the evidence of the two individuals named, i.e. KIMUNYAK ole KUPELE and KORINGO ole KOUA to be admitted as part of the evidence in this matter.
The only issue of concern is whether there is proof of the deaths and unavailability of the two witnesses without undue delay. It is not very clear to me when the deaths occurred. I am not aware of Narok Town being inaccessible due to the on-going rains. What I can confirm is that there have been heavy rains and floods within the area. If the persons died and a death certificate was issued, surely such information from the District Hospital which is within the Town Centre, cannot be an uphill task. I fail to comprehend the delay anticipated – a death certificate is usually prepared upon death, to certify the state of an individual and I direct that the same be made available for purposes of fulfilling the provisions of Section 34(1) of the Evidence Act.
H.A. OMONDI
JUDGE
30/04/2013