Republic v Nyokabi & another (Criminal Revision E023 of 2026) [2026] KEHC 10722 (KLR) (16 July 2026) (Ruling)

Republic v Nyokabi & another (Criminal Revision E023 of 2026) [2026] KEHC 10722 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10722 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E023 of 2026 PN Gichohi, J July 16, 2026 Between Republic Applicant and Agnes Nyokabi 1st Respondent Eliud Muya Kariuki 2nd Respondent Ruling 1.The Applicant moved this Court by a letter dated 29th January, 2025 citing Section 362 and 364 of the Criminal Procedure Code seeking revision of the trial court’s Ruling dated 29th July, 2025 in Nakuru Magistrate’s Court Criminal Case No. 2834 of 2019 and the court issues the following Orders:1.Stay of proceedings in Nakuru MCCR No. 2834 of 2019 R vs Agnes Nyokabi Muya and Eliud Muya Kariuki until this Revision application is heard and determined.2.That this Honourable Court be pleased to call for the record in Nakuru MCCR No. 2834 of 2019 R vs Agnes Nyokabi Muya and Eliud Muya Kariuki and set aside the Ruling of the Honourable Magistrate delivered on 29th July 2025.3.That consequent to the above, this Honourable Court orders that Prosecution witness No. 5 stood down on 22nd July 2025 do proceed to tender evidence upon the defence being supplied with the Document Examiner’s Report dated 26th March 2019.4.Any other order or relief s that this Court may deem fit to grant. 2.The explanation given in support of the prayers sought was that though the Prosecution acknowledges its duty of disclosure in all criminal proceedings , it also acknowledged that disclosures a contentious process and in this case, the Prosecution inadvertently did not supply the defence with the Report hence the objection by the Defence leading to the impugned Ruling. 3.Terming that inadvertence as a technicality, the Prosecution stated that trial court’s Ruling meant that the case would not be determined on merit since the Document Examiner’s Report goes to the root of charge. It was its position that the application was in good faith and that the defence would not suffer any prejudice if the document is to be supplied before its production by the witness (PW5). 4.In response, the accused persons filed a joint Replying Affidavit dated 19th March 2026 and opposed the application. While emphasising on the charges they were facing before the trial court, they deposed that upon taking plea on 19th September 2019, they were supplied with copies of charge sheet and the witness statements of the following:-1.Reuben Njuguna Kinuthia.2.Elizabeth Wambui Njuguna.3.Rosemary Wangui Mwenda.4.John Ngatia Waweru.5.Laban Otieno Ayunga .6.Joseph Mulinge Munguti.7.CPL Dominic Mbatha.8.PCP Caleb Kipkemboi.9.PC George Karani. 5.However, the Document Examiner’s Report dated 26th March 2019 was not supplied at pre-trial stage and before the court heard four (4) witnesses. That no reason was given as to why the Prosecution failed to disclose and supply the said Report. 6.While terming it false the Prosecution’s argument that disclosure in criminal proceedings is continuous, they relied on Article 50 of the Constitution that the Accused persons should be informed in advance the evidence the Prosecution would be relying on and to have reasonable access to the same. 7.In the circumstances, they argued that producing the said Report as they did amounted trial by ambush as stated by the trial court in the Ruling of 29th July 2025. They therefore urged the court to dismiss the application. Applicant’s Submissions 8.The Applicant identified one issue for determination that is; whether disclosure is a continuous process in criminal proceedings. While rehearsing the provisions of Article 50 (2) ( c) and (j ) of Constitution, the Applicant also cited several cases including Dennis Edmond Apaa & 2 others vs Ethics & Anti- Corruption Commission & another, Nairobi Petition No. 317 of 2012 [2012 ]EKLR and the Supreme Court decision in Khalid & 16 others vs AG & 2 others [2019]EKLR on the above constitutional provision and submitted that it is the duty of the trial court to give necessary directions to protect the accused’s rights to a fair trial. 9.Further, reliance was placed on Court of Appeal decision in Samuel Otieno Obudo & 6 others vs Republic Criminal Appeal No.83 of 2017 where it was stated that it is the Prosecution’s duty to avail documents is a continuous process. 10.It was therefore submitted that the trial court’s Ruling not only violated the principles of fair hearing but also undermined the principles of justice. By denying the Prosecution the opportunity to tender its evidence and for the accused to challenge the said evidence thus defeating the principles of fair trial, 11.The Prosecution therefore urged this Court to set aside the impugned Ruling by the trial court and direct that the Document Examiner to proceeds to tender his evidence. Respondent’s Submissions 12.While also highlighting what led to the impugned Ruling, the Defence submitted that the trial court rightly upheld the objection by the Defence on production of the Document Examiner’s Report. 13.Acknowledging the revisional jurisdiction of this Court, it was submitted that this Court can only be called upon to intervene if there were any irregularity , illegality ,incorrectness or impropriety on the part of the trial court . 14.In this case, it was submitted that none has been shown by the Prosecution and in support, reliance was placed on Njuguna Mwangi & another v Republic [2019] EKLR on exercise of the trial court’s discretion where the court stated:- “ ...exercise of a discretion based on the understanding and analysis of the law by trial court does not automatically amount to an irregularity nor impropriety. Perceived misinterpretation of the law cannot automatically in all situations be held to be an error calling for revision but a ground of appeal.” 15.In this application however, it was submitted that the Prosecution did not deny that at the time the Document Examiner’s report was introduced on 22nd July 2025, it was almost Seven (7) years after the Accused persons had been arraigned in court and Four (4) witnesses having testified against him. 16.In the circumstances, it was submitted that production of such a Report would be to introduce new evidence in the proceedings and that would greatly prepuce the accused’s right to a fair trial under Article 50 of the Constitution. 17.Consequently, Defence submitted that the trial court acted according to the law and therefore, if the Prosecution was aggrieved, they ought to have appealed against the trial court’s decision and not move the court by way of revision as done in this case. 18.In conclusion, the Defence urged this Court to dismiss the Application with costs. Determination 19.After hearing both parties through the material availed before Court together with the lower court record, the issue for determination is whether the revision sought is merited. 20.To start with, it is a fact that the accuse persons were charged before the trial court in Nakuru Criminals Case No. 2834 of 2019 where they faced three counts. 21.In Count I, they jointly charge with the offence of forgery contrary to Section 345 as read with Section 349 of the Penal Code. The particulars were that on the 18th May 2010 at Nakuru District Lands Office within Nakuru County, jointly with others not before court with intent to defraud forged the signature of Mr. Tanui on the allotment letter of Plot No. 50 now Subukia/Subukia Block 13/889[Kianwe] purporting it to have been appended by the late Mr. Tanui former Clerk Nakuru County Council. 22.In Count II , they were charged with the offence Making a Document without authority contrary to Section 357 [a] Penal Code. The particulars thereof were that on 19th May 1994 jointly with others not before court within Nakuru County with intent to defraud , without authority or lawful excuse made an allotment letter of Plot No. 50 now Subukia/Subukia Block 13/889[Kianwe], purporting it to be an official genuine allotment letter issued by the County Council of Nakuru. 23.In Count III, they were charged with the offence of Uttering a false document contrary to Section 353 of the Penal Code. The particulars were that on 7th June 2000, at Nakuru lands office within Nakuru County, knowingly and fraudulently uttered a forged letter of allotment of Plot No. 50 now Subukia/Subukia Block 13/889[Kianwe] to Mr. Joseph Munguti a District Land Registrar for purposes of obtaining registration of land parcel Subukia/Subukia Block 13/889[Kianwe] purporting it to be genuine allotment letter issued by the County Council of Nakuru. 24.The record shows that they denied the charges and the matter eventually proceeded for hearing and by 22nd July 2025, four (4) witnesses had testified . The witness for the day was PW5 who did not testify due this objection raised by the Defence leading to the impugned Ruling of 22nd July 2025. 25.The issue then is whether the trial court was justified in upholding the objection . Section 362 provides that:-“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.” 26.Further, Article 165 sub Article 6 & 7 of the Constitution stipulate thus:-“165 (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 27.In this case, the parties are in agreement that four (4) out of Seven (7) witnesses had testified. From the nature of the charges that the two accused persons were jointly facing, it was expected that Document Examiners’ Report would be crucial for a just determination of the case. 28.From the submissions by both parties , it is true that the Prosecution did not supply the Document Examiners’ Report as at the time it supplied the Defence with witness statements. Their re does not seem to be any reason why they failed to supply it on time including during pretrial or before the four witnesses testified ,but they called it inadvertence on their part. 29.However, it is noted from the case law cited that the duty to supply the documents so as to give effect to the right of fair trial under Arctica 50 (2) of the Constitution, is a continuous process. 30.Further, the Court notes that the delay in concluding this case was contributed by both the Defence and the Prosecution. Though the trial court’s decision cannot be termed as illegal, the issue herein cannot be for appeal as suggested by the Defence Counsel. 31.There was however a better option for the trial court to utilise for the sake of justice. That would have included ordering supply of the said Document Examiner’s Report and an Order for adjournment for the Defence to prepare themselves and even decide on whether to seek to recall any of the four witnesses who had testified for purposes of further cross examination if need be. 32.By upholding the objection raised by the Defence counsel, that decision would mean denying the parties a determination of the case on merits. In the circumstances, it is in the interest of justice that the Document Examiner testifies and produces the Document Examiner’s Report. 33.In conclusion therefore, this Court makes the following Orders:-t1.The Ruling of the trial court upholding the Defence’s Objection is hereby set aside.2.The Document Examiner is allowed to testify. 3.The Prosecution is directed to urgently supply the Defence with the said Report. 4.The Defence at liberty to apply to recall any of the witnesses for purposes of cross exanimation in regard to that Report if need be. 5.Each party to bear his own costs of this application. DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 16TH DAY OF JULY, 2026.………………………DR. JOSEPH SERGONJUDGE