https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12050

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CRIMINAL CASE NO E065 OF 2024** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **SIMON MWANGI MAINA Alias KING’ANG’I---------------1ST ACCUSED** **MUSINGI IVULI------------------------------- 2ND ACCUSED/RESPONDENT** **RULING** 1. The defence has opposed the intended calling of two production witnesses who are said to be in court but whose statements had not been supplied in advance. 2. The prosecution indicated that the two witnesses recorded their statements on 8/10/2024 but they were inadvertently not supplied to the Defence. 3. Mr. Naulikha prosecution counsel has told the court that he is new in the matter and was not aware of that fact of the statements not having been supplied. 4. The accused under **Article 50 (2)** of the **Constitution** are entitled to disclosure of all the evidence that the prosecution intends to rely on in advance for the trial. 5. The right to a fair trial is one of those inalienable rights that cannot be Limited under **Article 25** of the **Constitution**. 6. The court cannot allow the calling of a prosecution witness whose statement has not been supplied in advance to the defense. 7. To do so would amount to ambushing the defense and would further amount to an abrogation of the rights of the accused person. 8. The Law on disclosure is that it is continuous but that should never be equated to ambushing the defense. See **Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR)** where the court held;- “ ***The prosecution, at the beginning of his trial, supplied the defence with all the relevant material upon which they intended to rely. That was perfectly right because that material was gathered by the police using the resources provided by tax-payers among whom is the appellant. That material is not the personal property of the police and the police are under a legal duty to gather it on behalf of the public. Of course, no busy-body would be entitled to demand to see that material, unless there be some very good reason for such a demand. But the appellant was a party directly involved in the affair and as public property directly affecting him, he was entitled to. The police were under a legal duty to pass that material to the Attorney General and the Attorney General, who is, in all criminal cases, the prosecuting authority was bound to disclose it to the appellant before his trial and throughout the trial. If the Attorney General received any new information during the trial the Attorney General was bound by law to disclose it. This is because the duty of a prosecutor, acting on behalf of the Republic is not to secure a conviction at all costs but to be a minister of justice, i.e. to help the court arrive at a just and fair decision in the circumstances of each case. Any public prosecutor who sees his or her duty as being to secure convictions misses the point. As ministers of justice, public prosecutors must place before the court all evidence, whether it supports his or her case or whether it weakens it and supports the case for the accused.’’*** 9. The state must endeavor to disclose evidence to accused persons in advance to avoid unnecessary adjournments that contribute to delays in the conclusion of criminal trials. The spirit of Articles 25,50 and 159 of the Constitution cannot be realized if the prosecutions does not adhere to the salient principles of law governing a fair trial. 10. It is the best practice for it ensures there is equality of arms in a trial. 11. The two relatives of the deceased namely: 12. Serena Adongo Majoni 13. Daniel Majoni whose statements are held by the prosecution are to be immediately supplied to the defense to enable them prepare for the hearing scheduled for 29th July 2026. 14. The witness D5 whom the court had directed to appear today should be presented tomorrow 29th July2026 as the prosecution have undertaken to avail him then. 15. Consequently, the matter cannot proceed today to allow disclosure of witness statements of the two witnesses and any other whose statements the prosecution may still be holding. 16. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **28th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Habiba: Court Assistant Ms Naulikha for state Mwale for Accused Mateo for 2nd Accused