[2015] KEHC 4035 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL CASE NO. 11 OF 2012

REPUBLIC ........................................................................................................PROSECUTOR

V E R S U S

RONOH KHALIF AHMED ........................................................................................ACCUSED

RULING

The hearing of this matter has progressed substantially. It was now the time for tendering medical evidence. The prosecution had expressed its view that the doctor who prepared the post mortem reports a Dr. Menza was no longer in the service at Wajir Hospital. They stated that a Dr. Mohamed Bashir who works at Wajir Hospital knows the handwriting and signature of Dr. Menza. Dr. Mohammed Bashir was thus called to testify on behalf of Dr. Menza and produce post mortem forms filled by Dr. Menza for various victims.

When Dr. Mohammed Bashir appeared in court to testify as PW5, he stated that he was the Medical Superintendent at Wajir Hospital since February 2014. That though he had not physically met Dr. Menza, he went for internship in the same institution attended by Dr. Menza. He did not name that institution. He

however stated that he knew the handwriting and signature of Dr. Menza because he had seen many official handwritten documents which had been and signed by him. He had seen these documents at the Wajir District Hospital.

Learned counsel for the defence Mr. Onono objected to this witness producing the post mortem forms. He expressed doubt that Dr. Bashir had met or knew the handwriting and signature of Dr. Menza. Counsel emphasized that Dr. Bashire did not even name the institution where he and Dr. Menza went for internship. He also did not demonstrate to this court the documents he had seen at Wajir hospital which had the signature and handwriting of Dr. Menza. I am thus required to give a ruling on whether Dr. Bashir is qualified under section 77 of the evidence act to produce the medical documents allegedly signed by Dr. Menza.

Section 77 of the Evidence Act state as follows:-

77 (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.

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.

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”.

In my view section 77 of the Evidence Act does not deal with the issue as to who can produce such a document. The section allows the court to presume the geniness of the document. The section also states that the court may call the maker of that statement to be examined on the same. This means that such a document need not be produced by the maker. It also means that the court may or may not require the maker of the document to come to court. It thus means that the document is admissible whether or not the maker comes to court. That does not mean that its value will be the same if the maker fails to come to court to be examined. When the maker comes to court, the evidential value will be much higher as he/she will be subject to cross examination on the same.

The issue in contest herein is whether Dr. Bashir is qualified to produce documents covered under section 77 of the Evidence Act. A post morterm form in my view is a document covered under the section.I have been referred to Section 72 of the Evidence Act which reads as follows:-

“72- where evidence is required of a document which is required by law to be attested, and none of the attesting witnesses can be found, or where such witness is in capable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as un reasonable, it must be proved that

the attestation of one attesting witness atleast is in handwriting and that the signature of the person executing the document is in the handwriting of that person”.

Again in my view this section does not talk about the qualifications of the person to produce that document. It talks about a document which by law requires attestation and that the proof of atleast one attesting witness should be given to the court. The law does not say that, that document is not admissible or that it cannot be produced in evidence. It states however that proof of its attestation and handwriting has to been given. In my view such proof is a matter of evidence, and can be tested in cross - examination.

The postmorterm form is an official document, and in my view it can be produced by Dr. Bashir. He is the custodian. He can be cross examined on its contests. If there is no evidence or proof that it is done by Dr. Menza, then it is for the court to decide on its evidential value looking at the totality of the evidence. Otherwise the law in my view, does not say that the document is not admissible merely because the maker is not available or because proof beyond reasonable doubt has not been made at the preliminary stage, that the document was actually prepared by Dr. Menza.

To conclude in my view, Dr. Bashir can tender in or produce the post mortem forms because they are official documents from Wajir District Hospital and he

is the Medical Superintendent in that hospital. However he can be cross examined and challenged on how he knows that those entries were made by Dr. Menza. He can also be challenged on how those documents are stored or handled or any other relevant issue. This in my view is the purpose of section 70 of the Evidence Act which requires the proof of such handwriting or signature on a document. I thus disallow the objection of the defence.

Dated and signed at Garissa this 2nd day of July 2015.

GEORGE DULU

JUDGE