[2022] KEHC 16684 (KLR)
The court found that the defence was not denied a fair hearing, as they were allowed to cross-examine witnesses using available copies of statements after the police file was lost. The defence did not object to proceeding on this basis and participated fully in the trial. On the merits, the court held that the...
Source-derived case information.
- Citation
- [2022] KEHC 16684 (KLR)
- Parties
- Applicant: Republic; Defendant: Philip Mubia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 69 of 2015
- Procedural Posture
- Criminal Case / Ruling on Case to Answer
- Outcome
- Accused found to have a case to answer and put on his defence.
- Judges
- PJO Otieno
- Legal Topics
- Fair Trial Rights, Admissibility of Evidence, Prima Facie Case, Cross Examination, Lost Police File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Philip Mubia
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer
Legal Issues
- 1 Whether the accused was denied a fair hearing due to unavailability of original witness statements.
- 2 Whether the prosecution established a prima facie case against the accused to warrant putting him on his defence.
Ratio Decidendi
The court found that the defence was not denied a fair hearing, as they were allowed to cross-examine witnesses using available copies of statements after the police file was lost. The defence did not object to proceeding on this basis and participated fully in the trial. On the merits, the court held that the evidence of the three prosecution witnesses, corroborated by documentary exhibits, established a prima facie case connecting the accused to the injuries suffered by the deceased. Consequently, the accused was found to have a case to answer and was put on his defence.
Court Disposition
Accused found to have a case to answer and put on his defence.
Orders
- The accused is put on his defence to rebut the prosecution's evidence.
- Defence hearing scheduled for 7 March 2023.
Full Case Text
Judgment text and source record
23 paragraphs
Republic v Mubia (Criminal Case 69 of 2015) [2022] KEHC 16684 (KLR) (16 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16684 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 69 of 2015
PJO Otieno, J
December 16, 2022
Between
Republic
Prosecution
and
Philip Mubia
Accused
Ruling
1. The charge having been registered on the October 30, 2015, trial did not commence till the 4/6/2018 when PW1 testified. Matter adjourned to 23/7/2018 when PW2 and 3 were heard and matter adjourned to enable the prosecution call other witnesses.
2. Thereafter the matter took a hiatus till the 22. 9.2022 when the defence agreed with the prosecution that the autopsy report; treatment notes and X-ray Report and receipt be produced by consent and without calling the makers and marked as P.Exh. 1, 2 & 3 respectively. With such production the prosecution’s case was closed.
3. The defence has filed written submissions whose gist is that there was mistrial as the original statement recorded from witnessed had not been availed on the basis that the police file got lost. To the defence the order given on the 4. 6.2018 was set to be complied hence there had been a mistrial. On the merits the defence takes the view that the evidence of the three witnesses was insufficient to establish a prima facie case as known in criminal law.
4. The prosecution did not file any written submissions and sought to rely on the evidence on record.
5. The court has perused the court file and noted that the court having directed that the original statements be availed for cross examination by the defence, on the 23. 7.2018 and after hearing both sides the court directed that since the police file had been lost, the defence would cross examine in the basis of available copies. The defence counsel then did proceed with the other two witnesses availed without raising the question of need of original statements.
6. This court finds that the defence robustly participated at the trial by extensive cross examination and that no denial of fair hearing was occasioned.
7. On the merits, there is cogent evidence by PW1 as corroborated by that of PW2 and the three exhibits produced which on a prima facie basis connect the accused with the injuries suffered by the deceased. For that prima facie proof, the Accused is detained to have a case to answer and is put on his defence to give him a chance to rebut the evidence.
8. Defence hearing on 7. 3.2023.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH DAY OF DECEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for Ombito for the AccusedMs. Chala for the ProsecutionCourt Assistant: Polycap Mukabwa