[2023] KEHC 1859 (KLR)
The court found that while the DPP has significant discretion in conducting prosecutions, this discretion is not absolute and must be exercised in accordance with the Constitution, particularly with regard to the public interest, administration of justice, and the right to a fair and speedy trial. The court noted...
Source-derived case information.
- Citation
- [2023] KEHC 1859 (KLR)
- Parties
- Applicant: Republic; Defendant: Pc Beckham Osoro Orwaru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 24 of 2020
- Procedural Posture
- Criminal Case / Interlocutory Order on Admissibility of Evidence
- Outcome
- Objection by prosecution overruled; postmortem report admitted into evidence without calling the maker.
- Judges
- JM Bwonwong'a
- Legal Topics
- Admissibility of Evidence, Prosecutorial Discretion, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Pc Beckham Osoro Orwaru
Defendant
Procedural Posture
Criminal Case / Interlocutory Order on Admissibility of Evidence
Legal Issues
- 1 Whether the postmortem report by Dr Oduor can be admitted into evidence without calling the maker to testify.
- 2 Whether the Director of Public Prosecutions (DPP) has absolute discretion in the conduct of prosecutions.
- 3 Whether admitting the report without oral testimony prejudices the prosecution or violates the accused's right to a fair and speedy trial.
Ratio Decidendi
The court found that while the DPP has significant discretion in conducting prosecutions, this discretion is not absolute and must be exercised in accordance with the Constitution, particularly with regard to the public interest, administration of justice, and the right to a fair and speedy trial. The court noted that the postmortem report was clear as to the cause of death and that its admission would not prejudice the prosecution. Given the need to avoid unreasonable delay and in the interests of justice, the court overruled the prosecution's objection and admitted the report into evidence without requiring the pathologist to testify.
Court Disposition
Objection by prosecution overruled; postmortem report admitted into evidence without calling the maker.
Orders
- The postmortem report of Dr Oduor is admitted into evidence without calling the maker.
- Objection by the prosecution is overruled.
Full Case Text
Judgment text and source record
27 paragraphs
Republic v Orwaru (Criminal Case 24 of 2020) [2023] KEHC 1859 (KLR) (Crim) (28 February 2023) (Order)
Neutral citation: [2023] KEHC 1859 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Case 24 of 2020
JM Bwonwong'a, J
February 28, 2023
Between
Republic
Prosecution
and
Pc Beckham Osoro Orwaru
Accused
Order
1. The defence wants the report of Dr Oduor which is on the postmortem examination in respect of the deceased person be produced without calling the maker.
2. The prosecutor objects submitting that they want the pathologist to testify.Mr Majimbo for the victims supports the prosecution in that regard.
3. The basis of the objection is that the DPP cannot be directed on how to conduct their case and that in this regard they exercise complete independence.
4. This case was registered in 2020. Under article 50 (2) of the 2010 Constitution of Kenya “the accused has a right to have the trial begin and conclude without unreasonable delay”.
5. I further find that the mental assessment of the accused was admitted into evidence by consent as prosecution exhibit in the interest of a speedy trial.
6. I have perused the report of Dr Oduor. It is clear as to what caused the death of the deceased. Furthermore, I find that the DPP does not have complete prosecutorial independence on how to conduct
7. the case. Under article 157 (11) the DPP has to exercise his prosecutorial duties having regard to the public interest, the interests of administration of justice and need to prevent and avoid abuse of the court process.
8. Under the 1963 independence Constitution the Attorney General who then discharged the functions of the DPP had to be prohibited from prosecuting the applicant in Stanley Mungai/ Githunguri v R(1986) KLR 1 because he was abusing the court process.
9. I therefore find that it is in the interest of the public that the trial of the accused must be conducted in accordance with the constitutional dictates of a fair trial and speedy trial without delay.
10. The admission of the report of the pathologist will not prejudice the production case. In the premises, I hereby overrule the objection by the prosecution.
11. The said report is to be admitted into evidence in the interests of justice.
ORDER SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 28TH DAY OF FEBRUARY 2023. J M BWONWONG’AJUDGEIn the presence of-Court Assistant: KinyuaMs Maina and Mr Mulama for the StateMr Nyakundi & Mr Omenke for the AccusedMr Majimbo for the victimsAccused: present in person