[2018] KEHC 4323 (KLR)
The court found that although Section 77 of the Evidence Act permits the admission of expert reports without calling the maker, the production of the post mortem report by a police officer rather than a medical practitioner prejudiced the accused. The medical practitioner would have been able to answer questions...
Source-derived case information.
- Citation
- [2018] KEHC 4323 (KLR)
- Parties
- Appellant: Singh Bosire Nyangaresi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 35 of 2018
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; conviction and sentence set aside; retrial ordered.
- Judges
- DAS Majanja
- Legal Topics
- Manslaughter, Admissibility of Evidence, Production of Documents, Prejudice to Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Singh Bosire Nyangaresi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the production of the post mortem report by a police officer instead of a medical practitioner prejudiced the accused.
- 2 Whether the conviction and sentence should be set aside due to improper admission of evidence.
Ratio Decidendi
The court found that although Section 77 of the Evidence Act permits the admission of expert reports without calling the maker, the production of the post mortem report by a police officer rather than a medical practitioner prejudiced the accused. The medical practitioner would have been able to answer questions regarding the cause of death, a central element in the offence of manslaughter. This procedural irregularity undermined the fairness of the trial and warranted the setting aside of the conviction and sentence. However, given the freshness of the matter, the court ordered a retrial before a different magistrate.
Court Disposition
Appeal allowed; conviction and sentence set aside; retrial ordered.
Orders
- The appeal is allowed.
- The conviction and sentence are set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL APPEAL NO. 35 OF 2018
SINGH BOSIRE NYANGARESI........................APPELLANT
VERSUS
REPUBLIC.........................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. M.M Nafula – SRM
dated 8th June 2018 at the Principal Magistrate’s Court
at Ogembo in Criminal Case No. 1968 of 2016)
JUDGMENT
1. The appellant, SINGH BOSIRE NYANGARESI, was charged with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 17th October 2016 at Borangi Village, Ebioso Sub-location, Mochengo Location, Nyamache Sub-County within Kisii County, he unlawfully killed Mercy Moraa. He was convicted and sentenced to four (4) years imprisonment.
The respondent concedes the appeal on grounds that the post mortem report was produced by a person not qualified to the prejudice of the deceased. He however prays for a retrial.
3. The post mortem report relating to the deceased was produced by the investigating officer who told the court that the doctor who prepared it was on maternity leave. Section 77 of the Evidence Act (Chapter 80 of the Laws of Kenya) allows the production of a report under the handwriting of a Government Analyst, Medical Practitioner or any ballistics expert, Document Examiner or Geologist without calling the maker. Such a document is admissible whether or not the maker comes to court. Although the document was admissible, in my view, the accused was highly prejudiced when it was produced by a police officer rather than a medical practitioner. A medical practitioner would be able to respond to questions that relate to the post mortem and therefore the cause of death which is an important element of the offence of manslaughter.
4. I agree with the concession and allow the appeal. However since the matter is still fresh, the appellant shall remain in custody and shall be taken for retrial at Ogembo Magistrate’s Court for plea on 19th September 2018. The retrial shall take place before another magistrate other than Hon. Nafula, SRM.
Dated and delivered at Kisii this 17thday of September, 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Mr. Abobo for the Appellant.