[2017] KEHC 4065 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO.4 OF 2017

REPUBLIC ………………....………………………………………………APPLICANT

-VS-

TIMOTHY MWENDA GICHURU ……………………………………...…… 1ST ACCUSED

JACKSON MUGAMBI MUTWIRI ………………………………...…………2ND ACCUSED

NATHAN MURIUKI MUTHURI …………………………………………….3RD ACCUSED

---------------------------------------------------------------------------------------------------------------------

RULING

Extraction of blood sample

[1] By notice of motion made on 6th February 2017 under Section 122A (1) and (2) of the Penal Code CAP63 of the Laws of Kenya and all enabling provisions of the law, the state/ Prosecutor sought for orders:

1. THAT this application be deemed fit for admission for hearing on priority basis.

2. THAT this Honourable Court do make an order that blood samples be taken from the Respondents/ Accused persons for analysis by the Government Chemist.

3. THAT there be no orders as to costs of this application.

[2] The application is grounded on the Affidavit of the investigating officer Inspector Leonard K. Ngetich service No. 235209 who is attached to the Directorate of Criminal Investigation (DCI) – Nkubu within Meru County. He averred that, after careful process of gathering exhibits, consideration of witness statement and upon further advice by the office of the Director of Public Prosecution a decision was made to charge the Respondents with Murder contrary to Section 203 as read together with Section 204 of the Penal Code CAP 63 of the Laws of Kenya. It is alleged that the Respondents planned and carried out a robbery where they attacked two administration officers who were guarding Capital Sacco – Igoji Branch in South Imenti and stabbed one of the officers with a knife leading to her death. The incident attracted members of the public who responded and lynched one suspect and injured the Respondents. He further states that upon further investigation several exhibits were recovered at the scene of the crime which contained blood. These include:

a) Two kitchen knives, one with a sheath and another without. Both are blood stained.

b) One tear gas canister model 2020

c) Nineteen (19) rounds of 7. 62mm rounds of ammunitions

d) Grounded substance suspected to be pepper

e) A white cap stained with blood

f) A black headdress/mask

g) One khaki jacket with a white lining

h) A G3 Riffle S/No 78098637 Loaded With Nineteen Rounds Of 7. 62mm Ammunitions

These exhibits have since been taken to the government chemist for analysis and it has become necessary for blood samples of the Respondents to be taken for analysis to assist in evidence. He deposed that earlier efforts to obtain blood sample from the Respondents were frustrated by the doctors’ strike and Respondents were not fully in custody of police thus causing logistical challenges to organize provision of blood samples by the accused. He stated that if these orders are granted by the court, the investigating officer will personally oversee the whole process to ensure it is done in accordance with the law and in adherence to the rights of the Respondents to ensure justice is done.

[4] The court directed parties to file submissions and authorities on the application to draw blood samples from the accused persons. The Prosecution in their submissions reiterated the averments in the affidavit by the IO. Except they emphasized efforts by the investigators to obtain blood samples from the Respondents were frustrated by the national doctor’s strike that began on 6th December 2016 and ended at around 24th March 2017, 100 days later. It was difficult to predict when the strike would end, it became necessary for the prosecution to seek orders prayed for to enable the court to arrive at a just conclusion. The Applicant states that the responses by the 1st and 3rd respondents seem to suggest that if the prosecution is granted the orders sought then that will amount to self-incriminatory evidence (Article 50 (2) (1)) and that they will suffer prejudice. By referring to the cases of Dickson Ogendo& 2 Others vs. Attorney General & 5 Others [2014] eKLR, Republic vs. Amos KiyegonCherniyot 29/10 (2016) eKLR and Republic vs. John Kithyululu [2016] eKLR the Applicant states that there is consensus that the rule against self- incrimination is confined to protection against suspect being compelled to make an oral statement in a way as to condemn himself. And therefore provision of blood samples does not fit in the ambits of Article 50(20 (1) of the Constitution. Applicant further states that the orders sought are supported by Article 159 (2) (d) the Constitution, Section 122 of the Penal Code and Section 36 of the Sexual Offences Act. The blood samples could have been taken by any reputable private hospital but the doctors in the private sector also joined the strike. The prosecution urged that the reasons advanced for not obtaining the blood samples earlier are valid and genuine.

Standpoint of 1st accused

[5] The 1st Accused personrelied on his replying affidavit sworn on 27th February 2017. He contended thatthe investigating officer should have used all reasonable means to carry out his investigation as there were doctors within the government department who had not joined the strike.Similarly, there were government doctors who were offering services within the government and private hospitals. In addition, he stated that the government chemist was operational and the officer should have taken the accused person to the chemist to have the samples taken. His strong view was that the blood samples ought to have been submitted together with the other exhibits and it would be prejudicial at this stage to submit samples of blood from the accused when he has already been charged and at a time when the officer has the results from the government chemist of the exhibits that have already been analyzed. He further states that Article 50 (2) (1) of the Constitution provides for a fair trial and it would not be fair for an investigating officer who already has the results of an analysis from the government chemist to get samples as there is nothing to ensure that results so obtained will not be made to tally with those that are already in hands of the investigating officer. It would not be proper for the investigating officer to obtain confessions from an accused person because he already has facts of the case.

View taken by 3rd accused

[5] The 3rd Accused in his affidavit dated 31st March 2017 stated that DCI had ample time to investigate his involvement in the incident and every opportunity to obtain his blood samples while in police custody. He is of the opinion that all the investigative work ought to be done and concluded before an accused person is charged and arraigned before the court. That his right to a fair trial will be infringed if the prosecution is permitted to conduct further investigations in the name of “taking blood samples” after being processed and charges preferred against him. Further, the prosecution has not provided any justifiable reason why the said blood could not have been obtained at an earlier opportunity.

DETERMINATION

[6] Upon careful consideration of the application and the rival submissions of the parties, I am of this orientation. The prosecution has relied inter alia on Section 122A of the Penal code which provides that:-

122A“(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.

(2)In this section—

“DNA sampling procedure”means a procedure, carried out by a medical practitioner, consisting of—

(a)……….

(b) the taking of a sample of blood;

(c)……

(d)…….

for the purpose of performing a test or analysis upon the sample in order to confirm or disprove a supposition concerning the identity of the person who committed a particular crime;

“serious offence”means an offence punishable by imprisonment for a term of twelve months or more”

No doubt the police may by order require a person charged with a seriius offence- and murder is a serious offence as its punishment exceeds a term of 12 months- 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. But the objections I am hearing is that since the accused persons have already been charged, asking them to provide blood samples at this stage would amount to forcing them to give self-incriminating evidence, thus, violating their constitutional right to fair trial guaranteed under article 50(2)(1) of the Constitution that provides:-

“Every accused person has the right to a fair trial, which includes the right- to refuse to give self-incriminating evidence.”

It would appear that the accused persons are placing the request by the prosecution for blood samples on the yardstick of the Constitution and are seeking to impeach it on the basis that it infringes on their right to fair trial. These are constitutional issues to which I should give them much deeper thought; I will make an attempt below.

[7] The question whether requiring the accused persons to provide blood samples amounts to giving self- incriminating evidence, and therefore, is constitutionally prohibited is still elusive. Except judicial indents on the subject now has visible track marks. I do not wish to multiply them. But suffice to cite what Majanja J sated when he encountered this question in the consolidated petition ofRichard Dickson Ogendo& 2 others v Attorney General & 5 others [2014] eKLRthat:

“To my mind the, the privilege of an accused person not to incriminate himself, protects against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the accused in the commission of the crime.”

Kamau J also dealt with this question in the case Republic v John Kithyululu [2016] eKLRand stated the following:

“Having said so, it is clear from the aforesaid decided cases that an accused person’s right against self-incrimination constitutes giving oral or documentary testimony against himself and does not extend to taking of blood samples to prove a particular fact. There is therefore only a bar of communications and testimony by an accused person.Article 50(2)(l) of the Constitution of Kenya therefore only relates to communication that may be obtained from an accused person through coercion, unfair or unconstitutional means. For the foregoing reasons, this court was not persuaded by the Accused person’s submissions that there would be a violation of his rights under the provisions of Article 50(2) (l) of the Constitution if his blood sample was taken because taking of samples is per se not unconstitutional or an infringement on an accused person’s rights.”

Odero J similarly dealt with the question in the case of R vs. Amos KipyegonCheruiyot [2016] eKLR and reached similar conclusion.

[5] On my part, I agree with the postulation of the law in the foregoing cases and come to the same conclusion that the right of an accused person not to incriminate himself, protects against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the accused in the commission of the crime. Thus, blood sample is not compulsory oral examination or confessions or declarations; it is real or physical evidence which the accused could be compelled to provideif there are reasonable grounds to believe that DNA procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence. But I must state here that although our statutory law on provision of blood sample is sprinkled in various statutes, the core of the matter is that courts may direct a person charged with serious offence to provide blood samples for purposes of DNA testingif there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.As Odero J stated, it cannot be that an accused person charged under the Sexual Offences Act could be ordered to provide blood samples yet another charged with a serious offence under a different statute cannot be so directed; I think we should be guided by the overall objective of administration of criminal justice for all; the accused; the victims; and the society.

[8] Now that I am of that persuasion, is this request for blood samples merited? In this age of technology, DNA has become an investigative tool which will determine with almost certainty that a person committed or did not commit an offence. Such evidence is also admissible in judicial proceedings whether civil or criminal or sui generis. Therefore, the manner in which the blood sample for DNA testing and sampling is obtained is a matter of the Constitution and the law. Accordingly, where a person has not given blood samples voluntarily, an order of the court is required to compel the person to provide the blood sample. But, for the order to issue I suggest that the prosecution must show:-

(i) That there are reasonable grounds to suspect that theperson has committed or has been charged with a serious offence;

(ii) Thata test or analysis upon the blood sample might confirm or disprove a supposition concerning the identity of the person who committed a particular crime; or

(iii) That there are reasonable grounds to believe that the DNA sampling procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence

[9] Applying the above test, the prosecution argued that they were not able to obtain the blood samples from the accused while they were in police custody because the doctors were on strike. The accused are not convinced by the reason given and stated that the police had ample time to obtain blood despite the doctors’ strike. This is my take. It is the public domain that the doctors were on strike during the period starting from on 6th December 2016 to about 24th March 2017; bitter 100 days the country had to endure. The medical health sector was in almost complete paralysis. Such matters as taking of blood samples are delicate and the integrity of the process of extraction of blood, storage, transportation and final testing and analysis must be done well lest they should fail the admissibility test. Therefore, it is prudent that qualified medical professional a public hospital or reputable private hospital does it. In the circumstances, it is not fair to suggest that clinical officers who ordinarily must act on instructions from a specialist should have taken the blood samples if the doctors were absent due to the strike. It is within public knowledge that doctors in public hospitals were not providing services. Again, it is within public domain that even the private doctors withdrew some services in solidarity with their colleagues in the public sector. The accused persons were arrested during this unfortunate time. This is a unique situation and the circumstances of this case should be viewed in that light. Therefore, after taking the facts of this case in consideration, I accept the explanations given by the prosecution on why they were not able to obtain blood samples from the accused persons when they were in police custody to be reasonable. In arriving at these conclusions I am aware of other decisions of court of concurrent jurisdiction which held otherwise. But each case must turn on its own facts. As such, I reject the arguments by the Accused persons that the police could have taken them to private hospitals or that clinical officers could have drawn the blood samples. Needless to state that in private hospitals costs could be prohibitive. To avoid unnecessary arguments, public hospitals are ordinarily recommended. Again, security of transportingthe Accused persons to and from private hospitals or clinics may be a challenge. In light of the explanations given, am convinced that the prosecution were not indolent in obtaining blood samples at the time as doctors’ strike paralyzed services in all public hospitals.

[10] I now go back to the ultimate test; are there reasonable grounds to believe that DNA testing procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.The Prosecution stated that the exhibits recovered by the IO had blood on them and it is necessary for the accused persons to provide blood for DNA sampling thereto. These items are to be relied upon as exhibits in this case. The accused argued that the sampling may have been done on the blood on the exhibits and they fear that the prosecution may simply match the blood samples they are seeking from them thus incriminating them. There is absolutely nothing to show that the blood on the exhibits has been tested and analyzed. Again, the blood may or may not match and in any event, the analysis shall be subjected to admissibility test. Therefore, the fear by the accused is unfounded. But of significance is that the prosecution has an honest belief that DNA testing of the blood on the exhibits and of the accused persons might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.This belief is not unfounded. Accordingly, I find that provision of blood samples does not infringe the right to fair trial. Consequently, I direct each of the accused person to be taken to Meru Level 5 Hospital and provide blood samples for purposes of DNA testing and analysis limited to testing the blood on the exhibits identified by investigation officer, to wit:

a) Two kitchen knives, one with a sheath and another without. Both are blood stained.

b) One tear gas canister model 2020

c) Nineteen (19) rounds of 7. 62mm rounds of ammunitions

d) Grounded substance suspected to be pepper

e) A white cap stained with blood

f) A black headdress/mask

g) One khaki jacket with a white lining

h) A G3 Riffle S/No 78098637 Loaded With Nineteen Rounds Of 7. 62mm Ammunitions

It is so ordered.

Dated, signed and delivered in open court at Meru this 18th day of July 2017

-----------------------------

F. GIKONYO

JUDGE

In the presence of:

M/s. Nelima for Mrs. Ntaragwi advocate for 1st Accused

Muthomi advocate for 2nd accused

Gitonga advocate for 3rd accused.

-----------------------------

F. GIKONYO

JUDGE