[2019] KEHC 1831 (KLR)
The court held that since the investigating officer who took the photographs is able to confirm their authenticity and there is no evidence of prejudice to the accused, the requirements of Section 78A of the Evidence Act are satisfied. The court found that the omission by the scenes of crime officer to indicate...
Source-derived case information.
- Citation
- [2019] KEHC 1831 (KLR)
- Parties
- Applicant: Republic; Defendant: Samuel Wangura Kamotho
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2018
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Evidence
- Outcome
- application allowed
- Legal Topics
- Admissibility of Evidence, Photographic Evidence, Chain of Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samuel Wangura Kamotho
Defendant
Procedural Posture
Criminal Case / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether the investigating officer can produce photographs as evidence instead of the scenes of crime officer.
- 2 Whether the requirements of Section 78 and 78A of the Evidence Act regarding the production of photographic evidence have been met.
- 3 Whether the accused will suffer prejudice if the investigating officer produces the photographs.
Ratio Decidendi
The court held that since the investigating officer who took the photographs is able to confirm their authenticity and there is no evidence of prejudice to the accused, the requirements of Section 78A of the Evidence Act are satisfied. The court found that the omission by the scenes of crime officer to indicate sealing in the certificate does not preclude the investigating officer from producing the photographs, provided he can attest to their integrity. Therefore, the investigating officer is permitted to produce the photographs as exhibits in court.
Court Disposition
application allowed
Orders
- The investigating officer who took the photographs is allowed to produce them in court as exhibits.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAHURURU
CRIMINAL CASE NO.8 OF 2018
REPUBLIC.................................................................PROSECUTOR
V E R S U S –
SAMUEL WANGURA KAMOTHO...................................ACCUSED
R U L I N G
This is an application under Section 78A of the Evidence Act. Ms. Rugut has asked the court to allow the investigating officer who took photographs of the scene to produce them in evidence instead of the scenes of crime officer. The court declined to allow the scenes of crime officer to produce them because he did not indicate in the certificate prepared by him whether or not the envelope which contained the CD containing the photographs was sealed or not, contrary to the provisions of Section 78 of the Evidence Act. However the investigating officer who sent the CD to the scenes of crime is able to tell the court whether or not the photographs before the court are what he took or they have been tampered with.
So far, there is no evidence that the accused will suffer any prejudice if the photographs are produced by the investigating officer.
For the above reason, I do allow the investigations officer who took the photographs to produce them in court as exhibits. It is so ordered.
Dated, Signed and Delivered at NYAHURURU this 14thday of November, 2019.
.........................
R.P.V. Wendoh
JUDGE
PRESENT:
Ms. Rugut for State
Ms. Muriithi for accused
Soi – Court Assistant
Accused - present