[2014] KEHC 3066 (KLR)
The court held that although the best evidence rule generally requires a document to be produced by its maker, the extract from the message book had already been admitted into evidence by consent when the defence List of Authorities was filed on 15th April, 2011. The prosecution did not object at that time and...
Source-derived case information.
- Citation
- [2014] KEHC 3066 (KLR)
- Parties
- Applicant: Republic; Respondent: Mohammed Dadi Kokane alias Gabo; Respondent: Alfred Njuruka Makoko; Respondent: Samwel Mwachala Mwaghania; Respondent: James Chacha Mwita; Respondent: Daniel Mdachi Mnene Suleiman; Respondent: Osman Abdi Hussein; Respondent: Crispus Mkunguzi Mngolia; Respondent: Regea Omar Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 21 of 2010
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Documentary Evidence
- Outcome
- extract from message book admitted as evidence
- Judges
- JV Juma
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Best Evidence Rule
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mohammed Dadi Kokane alias Gabo
Respondent
Alfred Njuruka Makoko
Respondent
Samwel Mwachala Mwaghania
Respondent
James Chacha Mwita
Respondent
Daniel Mdachi Mnene Suleiman
Respondent
Osman Abdi Hussein
Respondent
Crispus Mkunguzi Mngolia
Respondent
Regea Omar Salim
Respondent
Procedural Posture
Criminal Case / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether the extract from the message book is admissible as evidence despite not being produced by its maker.
- 2 Whether prior consent to admission of the document precludes subsequent objection by the prosecution.
Ratio Decidendi
The court held that although the best evidence rule generally requires a document to be produced by its maker, the extract from the message book had already been admitted into evidence by consent when the defence List of Authorities was filed on 15th April, 2011. The prosecution did not object at that time and cannot now raise an objection. The court found that the extract is properly on record and admissible as evidence, but clarified that only the extract filed on 15th April, 2011, and not the entire message book, is admitted.
Court Disposition
extract from message book admitted as evidence
Orders
- The extract from the message book filed on 15th April, 2011 in the defence list of documents is ruled admissible as evidence.
- Only the extract, and not the entire message book, is admitted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE (MURDER) NO. 21 OF 2010
REPUBLIC.............................................................PROSECUTION
VERSUS
1. MOHAMMED DADI KOKANE alias GABO
2. ALFRED NJURUKA MAKOKO
3. SAMWEL MWACHALA MWAGHANIA
4. JAMES CHACHA MWITA
5. DANIEL MDACHI MNENE SULEIMAN
6. OSMAN ABDI HUSSEIN
7. CRISPUS MKUNGUZI MNGOLIA
8. REGEA OMAR SALIM…………………….………..………ACCUSED
RULING
The court is being asked to rule upon the admissibility of a ‘message book’ which was allegedly kept and maintained in the offices of Hon. Naomi Shaban who testified as Defence Witness No. 9 in this case. Mr. Ondari objected to the production of the register on the basis that the witness was not the maker of the same. Mr. Kithi counsel for the accused responded that the secretary who made the entries and maintained the book had left the employment of DW9.
The best evidence rule requires that a document be produced by its maker. No explanation has been tendered by the defence on what efforts have been made to trace and avail this witness. No allegation has been made that the witness is unreachable. Ordinarily the court would require that this secretary being the maker of said document appear and produce the same in court. However as pointed out by Mr. Kithi an extract from this message book was included in the defences List of Authorities which was filed in court way back on 15th April, 2011. This extract appears at pages 20 – 21 of the said list. This list was admitted into evidence by consent. Having consented to the admission of the document the prosecution cannot now turn around and object to the same. Any objection ought to have been raised in April, 2011 when the List of Authorities was filed. On the basis of the earlier admission of this document by consent I find the same is properly on record and I do hereby rule that the extract contained in the defence list of documents filed on 15th April, 2011 is admissible as evidence in this case. For clarity, what is ruled admissible is the extract filed on 15th April, 2011 and notthe entire message book.
Dated and delivered in Mombasa this 5th day of September, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Ondari for State
Mr. Gikandi for 6th Accused and h/b Mr. Kithi and Mr. Mwawasi for Accused 1, 2, 3, 4, 5, 7 and 8
Mr. Ouma h/b Mr. Murgor for Family
Court:
Hearing 29th and 30th September, 2014 for final submissions.
M. ODERO
JUDGE
5TH SEPTEMBER,, 2014