[2024] KEHC 12656 (KLR)
The court found that the prosecution failed to establish a proper legal foundation for the production of the RTGS document by PW15, as he was not the maker of the document and the persons who handled the document were not called as witnesses. The court held that the requirements of Section 35 of the Evidence Act had...
Source-derived case information.
- Citation
- [2024] KEHC 12656 (KLR)
- Parties
- Applicant: Republic; Defendant: Lucy Waithera Njuguna; Defendant: John Thari Gakinya
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 66 of 2020
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Evidence
- Outcome
- Objection sustained; prosecution barred from producing RTGS document as exhibit.
- Judges
- DR Kavedza
- Legal Topics
- Admissibility of Evidence, Production of Documents, Evidence Act Section 35
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lucy Waithera Njuguna
Defendant
John Thari Gakinya
Defendant
Procedural Posture
Criminal Case / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether the prosecution witness (PW15) is competent to produce the RTGS document as an exhibit.
- 2 Whether the prosecution laid a proper legal foundation for the production of the RTGS document by PW15 under Section 35 of the Evidence Act.
Ratio Decidendi
The court found that the prosecution failed to establish a proper legal foundation for the production of the RTGS document by PW15, as he was not the maker of the document and the persons who handled the document were not called as witnesses. The court held that the requirements of Section 35 of the Evidence Act had not been met, and there was no exception applicable to allow PW15 to produce the document. Consequently, the objection by the defence was sustained, and the prosecution's request to produce the RTGS document as an exhibit was overruled.
Court Disposition
Objection sustained; prosecution barred from producing RTGS document as exhibit.
Orders
- The prosecution's request to produce the RTGS document as an exhibit is overruled.
- The RTGS document may only be marked for identification and not as an exhibit.
Full Case Text
Judgment text and source record
23 paragraphs
Republic v Njuguna & another (Criminal Case 66 of 2020) [2024] KEHC 12656 (KLR) (22 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12656 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Case 66 of 2020
DR Kavedza, J
October 22, 2024
Between
Republic
Prosecutor
and
Lucy Waithera Njuguna
1st Accused
John Thari Gakinya
2nd Accused
Ruling
1. This ruling is issued in response to an objection raised by counsel for the defence. During the hearing of the case, the prosecution, through its witness Nicholas Ndegwa (PW15), sought to introduce a Real-Time Gross Settlement (RTGS) document as an exhibit. The defence objected to the production of the aforementioned exhibit.
2. I have duly considered the oral submissions made by Mr. Mulama on behalf of the prosecution, as well as those presented by Mr. Wandungi and Mr. Ochichi for the accused persons.
3. Upon reviewing the record, it is evident that the witness stated he received the cheque from Winston Otieno, a teller at the bank, who in turn had received the cheque from Faith Njambi, an employee of Hari Gakinya & Co. Advocates. Notably, both Faith and Winston were not called as witnesses to testify. Furthermore, the witness (PW15) indicated that after consulting with Maralal and the Headquarters, he was advised not to cash the RTGS. However, the emails that facilitated this communication were not produced by the witness.
4. It is pertinent to note that the witness is not the maker of the document in question. The prosecution has failed to establish a proper legal foundation for why this witness should be permitted to produce the exhibit. As such, there is no legal basis for the witness to produce the exhibit, and the evidence does not fall within any exceptions to the rule under Section 35 of the Evidence Act. I am inclined to concur with the defence counsel's position that PW15, Nicholas Ndegwa, cannot produce the RTGS as an exhibit; he may only mark it for identification.
5. Accordingly, I sustain the objection and hereby overrule the prosecution's request to produce the exhibit.
6. Orders accordingly.
Ruling dated and delivered virtually this 22nd day of October 2024D. KAVEDZAJUDGEIn the presence of:Ms. Maina for the StateMs. Wanduyi for the Accused personsAchode/Omwoyo Court Assistants.Page 1 of 1