[2022] KEHC 15494 (KLR)

Republic v Namwenya & another (Revision Case E089 of 2022) [2022] KEHC 15494 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15494 (KLR)

Republic of Kenya

In the High Court at Embu

Revision Case E089 of 2022

LM Njuguna, J

November 16, 2022

Between

Republic

Applicant

and

Victor Jairus Namwenya

1st Respondent

Charles Waweru Kamathi

2nd Respondent

Ruling

1. This criminal revision matter was brought to this court through a letter signed by Mr Daniel Karuri, senior assistant director of public prosecution dated July 26, 2022 whereupon the court gave directions that a proper application be filed. The prosecution therefore filed an application dated August 4, 2022 and wherein it sought for orders that:i.Spentii.Spentiii.This honourable court be pleased to exercise its discretion to call for and examine the record in Anti Corruption Criminal Case No E001 of 2021, Republic v Victor Jairus Namwenya and Charles Waweru Kamathi for the purpose of satisfying itself on the correctness, legality and propriety of the findings and orders as well as the regularity of the proceedings giving rise thereto.iv.This honorable court do revise and set aside the order of July 25, 2022 and allow the government analyst to testify.v.This court issues any orders that it may deem fit.

2. The application is based on the grounds on its face and further supported by the affidavit of Diana Irungu.

3. The applicant’s case is premised on the fact that the prosecution on July 25, 2022 called the 5th witness, Moses Ndung’u, a government analyst to testify. That the defence counsel objected to the production of the report by the government analyst because at the time of recording his statement on August 23, 2019, he had not been gazetted and therefore, did not qualify as an analyst. On the other hand, it is the respondent’s case that the witness was a qualified witness. The respondents placed reliance on section 77 of the Evidence Act which states that in criminal proceedings, any document purporting to be a report under the hand of a government analyst may be used in evidence. That the applicant also urged the court to take judicial notice that the witness was a public officer. It took issue with the learned magistrate appreciation of sections 60 and 77 of the Evidence Act as to when the maker of a document is not the one testifying and further that the witness had to show that he was a competent witness. The respondent contended that the trial magistrate did not record the sentiments or response of the 1st accused/applicant towards the testimony of the 5th witness, which was unprocedural.

4. The respondents opposed the application by filing replying affidavits both sworn on October 27, 2022. They submitted that the application herein is bad in law, devoid of merit and it’s based on a misconception of the law. That the trial court’s order was correct, legal and proper based on the correct interpretation of the law. On the request by the applicant for the court to take judicial notice that PW5 is a public officer, the respondents submitted that section 60 of the Evidence act outlines the instances when the court can take judicial notice. It was deposed that the trial court was right in reaching the determination barring the government analyst from testifying and producing the report.

5. The court gave directions that the application be canvassed by way of written submissions and whereby all parties complied.

6. The applicant submitted that the trial court erroneously construed section 77 of the Evidence Act and thus rejected the evidence of the government analyst as well as the production of his report. That the application is based among other legal provisions on section 362 of theCPC which gives this honourable court the authority to request and review the record of any criminal proceedings before any subordinate court in order to determine whether any finding, sentence or order was correct, legal or appropriate. As a result, it was argued that this application, therefore, is properly before this court. That section 48 (1) of the Evidence Act defines who a qualified expert witness is and that the court may form an opinion upon getting the evidence of such a qualified person. It argued that the respondent did not dispute the government analyst’s qualifications as an expert witness but rather disputed the fact that at the time the report was made, the analyst was not gazetted. It was its case that the Anti-Corruption and Economic Crimes Act No 3 of 2003 which is the law under which the respondents have been charged, only provides for mandatory gazettement of anti-corruption magistrates under section 3 but the Act does not anticipate mandatory gazettement of expert witnesses and officers under the Act.

7. That section 77 of the Evidence Act does not deal with the issue as to who can produce a document but it allows the court to presume the geniuses of the document. Reliance was placed on the case of Republic v Rono Khalif Ahmed [2017] eKLR. It was submitted that the geniuses of the document prepared by the government analyst has not been contested by the respondents. That the issues raised by the respondents in their responses borders on the gazettement of the applicant’s witness. It was contended that the government analyst was a qualified witness at the time of preparing the report and at the material date when he was adducing his evidence. The respondents submitted that all these issues are matters of evidence and the same could only be tested through cross examination and that the trial court pre-maturely dismissed the government analyst from giving his evidence thereby denying the applicant an opportunity to clarify the issue raised to enable the trial court make an informed decision.

8. The respondents further submitted that the trial court’s decision was correct, legal and proper based on the correct interpretation of the Evidence Act. Additionally, they reiterated that the applicant’s assertion that the witness was qualified under section 77 of the Evidence Act is entirely based on a misapprehension of the law. That the making and production of a report by an officer who is not gazetted renders the same inadmissible and the court was right in upholding the same. It was their case that the purpose of gazettement is to enable the officers to use government letterheads, process government documents or work outside the civil service through a special license. That the effect of being gazetted is that the officer is at all times subject to the direct authority, control and supervision of the cabinet secretary in charge of the parent ministry, thereby creating a pool of management level professionals and special duty officers of national importance in their professional capacity such as preparation of reports, certificates and technical documents.

9. That contrary to the applicant’s prayers that the court should have taken judicial notice that the witness was a public officer, it was contended that section 60 of the Evidence Act outlines the instances in which the court can take judicial notice. That sub section (f), stipulates that the court would take judicial notice only in cases of ‘the accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the gazette’. It was their contention that the said witness was gazetted as an analyst on June 18, 2021 and yet he made the report on August 9, 2019; and therefore, the trial court was right in finding him an incompetent witness.

10. I have considered the application before me and the replying affidavits in opposition of the same. I have also considered the submissions by the parties herein and I form the view that the main issue for determination is whether the prayers sought by the applicant can issue.

11. The powers of the High Court in revision are set out in section 362 through to 366 of the Criminal Procedure Code (cap 75 of Laws of Kenya). Section 362 specifically provides that:'362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court'.

12. What the High Court can do under its revision jurisdiction is stated under section 364 of the Criminal Procedure Code Cap 75, which provides:'364(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may -(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;(b)in the case of any other order than an order of acquittal, alter or reverse the order.2. No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.5. When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.'

13. It is thus clear from the above provisions of the Criminal Procedure Code that the High Court has wide powers in its exercise of revision jurisdiction.

14. The crux of the matter herein is the fact that the governmental analyst was gazetted on the June 18, 2021 yet he made a report on August 9, 2019 which the prosecution desired to produce in the matter before the trial court. The applicant submitted that the case herein is one of Anti-Corruption and Economic Crimes Act No 3 of 2003 which is the law under which the respondents have been charged and the same only provides for mandatory gazettement of anti-corruption magistrates under section 3. That the Act does not anticipate mandatory gazettement of expert witnesses and officers under the Act. Further, it was its contention that section 77 of the Evidence Act does not deal with the issue as to who can produce a document but it allows the court to presume the geniuses of the document.

15. Section 77 of the Evidence Act state as follows:-1. In criminal proceedings any document purporting to be a report under the handwriting of a government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.2. The court may presume the signature of any such document is genuine and that the person signing it or the office and qualifications which he processed to hold at the time when he signed it.3. When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case maybe, and examine him as to the subject matter there of'.

16. It is not disputed that the government analyst herein clearly admitted that he was gazetted as an analyst on June 18, 2021 and yet he made the report on August 9, 2019. In the circumstances obtaining, the above section clearly stipulates that before making a document recognizable in court in line with section 77(2), or being considered as a qualified government analyst, then the gazettement of the said officer ought to have preceded the making of the alleged document.

17. From the foregoing, I uphold the determination by the learned magistrate that indeed, the government analyst was an incompetent witness and the report that he prepared and wished to produce was not a legal document as per the law required.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 16TH DAY OF NOVEMBER, 2022. L NJUGUNAJUDGE……………………………..…………..for the Applicant………………………………………for the Respondents