https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11623

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CRIMINAL CASE NO. E020 OF 2023** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **SAMUEL LONGUTUTI SAIGURANI Alias MAASAI------------ACCUSED** **RULING** **INTRODUCTION** 1. The accused person is charged with the offence of murder and the particulars of the offence are that on the night of 15th and 16th March 2023, at Maji Mazuri, 4th street within Mwiki area of Kasarani Sub County, within Nairobi County SAMUEL LONGUTUTI SAIGURANI Alias MAASAI murdered LUCY WANJIKU MAINA. 2. The accused person has been in custody since the time of his arrest in 2023 therefore the matter had been pending all along leading him to offer a plea of guilty to Manslaughter which he later withdrew indicating that the offer was made out of frustration. **APPLICATION** 1. The trial of the accused started on the 10th of February 2026 when the prosecutions called its first witness one Kipng’etich Bernard a government analyst. The accused person was represented by Mr King’oina who indicated that he was ready to proceed before the trial commenced and that he had received instructions from the accused person to conduct his defence. 2. The prosecution led Mr. Kipng’etich Bernard in examination in chief who informed the court that he was a government analyst based at the government chemist department Nairobi. The witness gave his testimony up to the point where he sought to produce the government analyst report MFI-1 as P-EXH 1. 3. Mr. King’oina objected to the production of the document arguing that the report had not been supplied to the defence before the trial and that its production would offend the provisions of Article 50 (2) of the Constitution. 4. Counsel argued that if the court were to allow the witness to produce the document, the accused person’s right to a fair trial would be violated since the prosecution had always had the document since 25th October 2023 and that the same had never been shared with the defence. Mr. Kingóina argued that the prosecution was under duty to supply the defence with all the necessary evidential material prior to the hearing in order to enable the accused to adequately prepare for his defence. 5. Further, counsel submitted that when he took over the matter on 23rd September, 2025 he went to the court registry and obtained a copy of the bundle that had been filed in court and that the bundle did not include the government chemist report. 6. Counsel observed that the date appearing on the report reads 26th November 2025 which was clearly a date indicative of the fact that the report was prepared long after the matter had been set down for hearing on 24th September 2025. The court was urged by the defence to find that the prosecution intended to prejudice the accused by failing to disclose the document in advance only to surprise them at the hearing. 7. The defence urged the court to reject the document in toto since there was no reason given by the prosecution for failing to supply the document. **RESPONSE** 1. The prosecution through Ms. Dela conceded that they had not served the defense with the document but urged the court not to reject it. **ANALYSIS AND DETERMINATION** 1. The right of an accused person to a fair trial is an inalienable right under Article 25 of the Constitution. It is a right that cannot be limited and must be respected by the court throughout the trial. 2. The prosecution bears the legal and evidential burden of proof in all criminal trials and must therefore disclose the evidence that it intends to rely on against an accused person before the trial commences as required under Article 50 (2) of the Constitution. 3. The duty to disclose should preoccupy the mind of a prosecutor even when evidence or new material is discovered long after the matter has commenced but is still pending trial. It should never be the position that a prosecution counsel springs up a document in court during the trial and expects the accused person and his counsel to proceed with the trial. Such conduct would amount to trial by ambush a practice that cannot be entertained in modern day prosecutions. 4. An accused person charged with the offence of murder stands the risk of getting the highest penalty one can ever receive out of a criminal trial and as such anything that may prejudice the realization of a fair trial must be avoided and deprecated by this court. 5. This court is aware that the duty to disclose is a continuous one but that should never be mistaken to mean that disclosure can happen during the cause of a trial without adequate notice to the accused. The use of the phrase “in advance” under Article 50 (2) means before the trial and not during the trial. 6. In [*R v Ward [1993] 2 ALL ER 557*](http://netk.net.au/UK/Ward.asp) the Court of Appeal in England was unanimous that; “The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution was under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution was required to make available the records of all relevant experiments and tests carried out by expert witnesses.” [Emphasis added]. 1. In the case of [*Joseph Ndungu Kagiri v Republic [2016] eKLR*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/4153) the Court dealing with the issue of disclosure had this to say;- “This means the duty is cast on the prosecution to disclose all the evidence, material and witnesses to the defence during the pre-trial stage and throughout the trial. Whenever a disclosure is made during the trial the accused must be given adequate facilities to prepare his or her defence. This position had also been stated in [*R v Stinchcombe [18]*](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/808/index.do) where the Supreme Court of Canada observed, “The obligation to disclose was a continuing one and was to be updated when additional information was received.” 2. The position taken by this court is that disclosure though continuous must be done within a reasonable time in advance of the trial and that the prosecution ought not be allowed to spring up surprises at the trial by introducing documents through witnesses if the said documents have not been disclosed to the defense in advance. 3. Any attempt to do so would meet outright rejection by this court and it should be avoided. 4. It is in the interests of justice that the fair trial rights of an accused are respected and although the prosecutor has the power to decide the witness to call and when to call the witness that power does not extend to deciding what evidential material to disclose and not to disclose. 5. The prosecutor is under duty to disclose all the material gathered in the course of investigation whether inculpatory or exculpatory. The prosecution must disclose all material including statements recorded by the accused persons and their co-accused if any during interrogation. It is never about ambush but fairness to the accused so that he is able to mount a defense without any unnecessary limitations. See **Republic vs Kimunge (Criminal Case E010 of 2020) {2025} KEHC 5744 (KLR) (8 May 2025).** 6. The Office of the Director of Public Prosecutions Act under Section 26 provides;- **Duty of disclosure** **(1)** The Inspector-General or any other investigative agency shall disclose to the Director all material facts and information collected in the course of an investigation that may be reasonably expected to assist the case of prosecution or defence. **(2)** The Inspector-General or any other investigative agency shall **(a)** conduct thorough investigations; **(b)** compile all evidence; and **(c)** submit all relevant information in relation to any investigation undertaken. **(3)** The duty of disclosure under this section shall— **(a)** include privileged information; and **(b)** continue until the determination of the case. **(4)** In this section "privileged information" means any information or material that would be exempted from production in court or disclosure, by any written law or for any other lawful or justifiable reason. 1. The DPP once he has received such material is under duty to disclose to the defense. The law only envisages exemption from disclosure material that may be privileged or such information as may relate to identity of informers and information that may endanger National security. 2. The framers of our Constitution in including the right to a fair trial amongst those rights that cannot be limited under Article 25 must have been cognizant of the fact that a person undergoing a criminal trial has his liberty and at times his life at stake thus the need to ensure that there is procedural fairness in the manner a trial is conducted. 3. The upshot of the above is that the prosecution shall immediately make available a copy of the Government analyst report to the defense and any other material in their possession relevant to this trial within 7 days from today so as to avoid any adjournments in the future such as happened during the last hearing. 4. The prosecution counsel in this matter quite understandably appeared helpless when this court insisted on being told why there was delay in the preparation and service of the Government Analysts report. The prosecution counsel is fully aware of the no adjournment policy of the court thus her difficulty in having to offer excuses for delays that cannot strictly be attributed to her. 5. It is important for me to say something about the Government Chemist Department before I pen off. The current situation is not good at all for trials in our criminal courts. The delay in preparation of the reports is alarming and distressing. The exhibit memo form from the CID Kasarani in this case was prepared and exhibits forwarded for examination on the 30th March 2023 and received at the laboratories on 4th April 2023. The report as per the date appearing on its face was prepared on 26th November 2025 a period of well over 2 years and 7 months. The delay is not an isolated one. 6. That delay in the preparation of the report is inordinate by all standards, more so, considering that this is a matter where the accused has been in custody and the victims are still waiting for justice. It is time something was done to improve the capacity of the Government Chemist Department. The country continues to churn out graduates in the relevant fields of study thus human resource constraints can be adequately addressed. 7. The important role that the Department plays in resolution of criminal cases in our courts need not be overemphasized. There is urgent need for concerned Cabinet Secretary, the DPP and the Hon Attorney General to immediately escalate this matter to the highest levels of Government in order for the Department to be adequately resourced. That will go along way in resolving matters that have had to be adjourned variously throughout the country to await the Analysts reports. It is a crisis that requires remedial action urgently. 8. The Ruling of this court should be served upon the relevant Cabinet Secretary’s office, the Director of the Public Prosecutions and the Hon. Attorney General for their immediate attention and joint action. 9. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **4th** day of **MAY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Ms. Dela/Ms Njoroge for the state Mr. King’oina for the Accused Accused: present