Republic VS 1. Joseph Kimani Maina Waithera Alias Mzae 2. Anthony Wanjau Maina Alias Dind Dong Republic VS 1. Joseph Kimani Maina Waithera Alias Mzae 2. Anthony Wanjau Maina Alias Dind Dong

The state in this matter by way of a Notice of Motion dated 31^st August 2021 moved the court to have the two accused persons be ordered to submit to the taking of buccal swabs by the Government chemist for purposes of DNA testing.
The two accused are charged with the offence of murder.
The two are alleged to have murdered PATRICK EDUI MWITI alias BALOTELI on the 21^st July 2021 at Muthurwa Railway Estate in Kamukunji Sub County together with others not before the court.
The intended samples are to be compared with DNA material on the exhibits that were collected from the scene of crime.
The application is opposed by the accused persons through their respective counsel who have argued that to order that the two be subjected to the taking of DNA samples would be to violate their right to a fair trial.
The accused persons have further argued that ordering them to submit to the exercise would be against the rule to self incrimination.
The prosecution as well as the accused filed their respective submissions on the matter which I have duly considered.
The application basically presents the legal question whether an accused person can be ordered to be subjected to a DNA sampling exercise when he has already been charged and two whether by doing so the court would be violating or sanctioning the violation of the accused’s person’s right to a fair trial.
The High Court has on a number of occasions been called upon to determine the twin issues and the answer has been a consistent yes on the two issues.
The accused person could as well be subjected to the taking of DNA material that upon analysis could result in them being exonerated from commission of the offence.
It does not necessarily follow that all DNA samples once collected the evidence collected at the end would necessarily incriminate the accused.
The scientific possibility of the DNA samples generating DNA evidence that exculpates an accused person answers the question as whether by the court sanctioning the sampling , that would amount to self incrimination.
In Richard Dickson Ogendo & 2 Others Vs. Attorney General Majanja ,J & 5 Others [2014] Eklr the court held:
“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.”
In Republic Vs John Kitunyulu [2016] eKLR Kamau, J held:

“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 the person has committed or has been charged with a serious offence;

(ii) That a 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
The prosecution by making the application stated the purpose for which DNA samples are requested.
It should be made clear that for purposes of ensuring that the rights of the accused person to a fair trial are not compromised the buccal swabs that are to be taken from the accused persons in this case are to be used specifically in the analysis of exhibits that were in the custody of the police as at the date of the filing of this application that being 31^st August 2021.
Any exhibit that may have been collected from the scene after the above stated date shall be excluded from the analysis.
The Government analyst shall thus rely on the exhibit memo dated 31^st August 2021 annexed to the affidavit in support of the application.
In the making of the order allowing this application the court appreciated that this matter has taken quite a long time to be prosecuted thus any delay in the analysis of the exhibits must be avoided.
The right to a fair trial includes the right to an expeditious trial. The prosecution must therefore with speed to ensure that the analysis of the exhibits upon the taking of swabs is expeditiously done.
In the end I allow the application dated the 31^st August 2021 and order that the accused persons be escorted to the government chemist for the taking of the swabs immediately.
It is so ordered.