[2024] KEHC 8217 (KLR)
The court found that there was no evidence before it to establish whether any samples were taken from the accused or on whose order. As such, the objection to the production of the Government Chemist report was premature. The court agreed with the prosecution that the application was not ripe for determination and...
Source-derived case information.
- Citation
- [2024] KEHC 8217 (KLR)
- Parties
- Applicant: Republic; Defendant: John Otieno Odindo Alias Johana Otieno Odindo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2020
- Procedural Posture
- Criminal Case / Ruling on Objection to Admissibility of Evidence
- Outcome
- Objection dismissed; case to proceed to hearing.
- Judges
- MS Shariff
- Legal Topics
- Admissibility of Evidence, Dna Sampling, Police Powers, Consent in Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
John Otieno Odindo Alias Johana Otieno Odindo
Defendant
Procedural Posture
Criminal Case / Ruling on Objection to Admissibility of Evidence
Legal Issues
- 1 Whether blood samples were obtained from the accused without his consent contrary to Section 122(c) of the Penal Code.
- 2 Whether DNA sampling was ordered by a competent officer as required under Section 122A of the Penal Code.
- 3 Whether the objection to the production of the Government Chemist report was prematurely made.
Ratio Decidendi
The court found that there was no evidence before it to establish whether any samples were taken from the accused or on whose order. As such, the objection to the production of the Government Chemist report was premature. The court agreed with the prosecution that the application was not ripe for determination and dismissed the objection, allowing the case to proceed to hearing.
Court Disposition
Objection dismissed; case to proceed to hearing.
Orders
- The objection to the production of the Government Chemist report is dismissed.
- The case shall proceed for hearing on 4th July, 2024.
Full Case Text
Judgment text and source record
19 paragraphs
Republic v Odindo alias Johana Otieno Odindo (Criminal Case 12 of 2020) [2024] KEHC 8217 (KLR) (28 June 2024) (Ruling)
Neutral citation: [2024] KEHC 8217 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case 12 of 2020
MS Shariff, J
June 28, 2024
Between
Republic
Prosecution
and
John Otieno Odindo Alias Johana Otieno Odindo
Accused
Ruling
1. On 3rd October, 2023 the prosecution called one Policap Lutta Que Principal Government Chemist as PW4 but before this witness could testify, Mr. Bagada Counsel for the defence objected to the production of a report by the Government Chemist on grounds that blood sampleSs were obtained from the accused without his consent contrary to the provisions of Section 122 (c) of the Penal Code which prescribes for a prior consent.
2. It is further submitted that samples taken from the accused were by the order of the Investigating Officer who is a junior officer yet Section 122 (A) demands that DNA sampling can only be done at the instance of a senior officer above the rank on an Inspector thus:“122 A Senior Police Officer may order DNA sampling procedure on suspect (1) A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence”.
3. In this instance no report has been placed before this court yet for it to determine whether any samples at all were taken from the accused person and on whose order. In the circumstances I do agree with the prosecution that this application was prematurely made and same is dismissed.
4. This case shall proceed for hearing on 4th July, 2024.
DELIVERED, SIGNED AND DATED AT KISUMU THIS 28THDAY OF JUNE, 2024. M. S. SHARIFFJUDGE