[2017] KEHC 168 (KLR)
The court determined that the evidence of the pathologist who prepared the post-mortem report is essential to the just resolution of the murder charge against the accused. Although the post-mortem report was admitted by consent due to the doctors' strike, the absence of oral testimony from the pathologist leaves a...
Source-derived case information.
- Citation
- [2017] KEHC 168 (KLR)
- Parties
- Applicant: Republic; Defendant: Mary Atai
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 94 of 2014
- Procedural Posture
- Criminal Case / Ruling After Close of Prosecution Case, Before Judgment
- Outcome
- Further evidence to be taken before judgment.
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Admissibility of Evidence, Expert Witness Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Mary Atai
Defendant
Procedural Posture
Criminal Case / Ruling After Close of Prosecution Case, Before Judgment
Legal Issues
- 1 Whether the evidence of a pathologist is essential for a just determination of the murder charge.
- 2 Whether the court should invoke section 150 of the Criminal Procedure Code to summon the pathologist.
Ratio Decidendi
The court determined that the evidence of the pathologist who prepared the post-mortem report is essential to the just resolution of the murder charge against the accused. Although the post-mortem report was admitted by consent due to the doctors' strike, the absence of oral testimony from the pathologist leaves a critical evidentiary gap. Section 150 of the Criminal Procedure Code empowers the court to summon any witness whose evidence is necessary for a just decision. The court therefore exercised its discretion to summon Dr. Titus Ngulungu, the pathologist, to give evidence before judgment is rendered, ensuring that the accused receives a fair trial and that the court's decision is...
Court Disposition
Further evidence to be taken before judgment.
Orders
- Summons to issue to Dr. Titus Ngulungu to give evidence on the post-mortem report.
- Hearing set for 25/10/2017.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 94 OF 2014
REPUBLIC................................STATE
VERSUS
MARY ATAI.......................ACCUSED
RULING
The accused MARY ATAI faces a charge of murder. The prosecution having closed its case, the accused was called upon to give her defence and she did duly make an unsworn defence. The matter is now pending before me for judgment.
I note that during the trial no doctor came to court to give evidence in the matter. Due to the lengthy doctor’s strike and being unable to predict when doctors would resume duty the post-mortem report was admitted into evidence by consent.
However having read the record I am of the opinion that it is necessary to obtain the evidence of a doctor to enable the court reach a just conclusion in this matter.
Section 150 of the Criminal Procedure Code provides that
“150 A court may at any stage of a trial or other proceeding under this code, summon or call any person as a witness or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or re-call and re-examine such person if his evidence appears to it essential to the just decision of the case….”
It is my considered opinion that the evidence of the pathologist is essential to the just decision of this particular case.
Invoking the above provision of law I hereby direct that Dr. Titus Ngulungu who prepared the post-mortem report in this case be summoned to give evidence on the same before I prepare my judgment.
Summons to issue as directed.
Read in open court
Mr. Obutu holding brief for Mr. Mongeri
Mr. Chigiti for DPP
Court– Summons to issue to Dr. Titus Ngulungu. Hearing on 25/10/2017.
Maureen A. Odero
Judge
13/10/2017