The Republic VS D0MINIC MUTINDA MUS0MBA

1.    Through a consolidated information dated 10/2/2021 – Dominic Mutinda Musomba and Francis Vaati Mwania were charged with murder contrary to section 203 as read with section 204 of the Penal Code.
2.    The particulars of the charge were that on the night of 20th and 21st September 2020 at Mutula village Makueni sub county Makueni county, jointly with others not before court murdered Francis Munguti Musa.
3.    They denied the charge.
4.    While hearing PW9 – No. 246865 PC Winfred Mwende Kyalo it emerged that there was documentary evidence that had been supplied to the defence.
5.    Counsel for accused – Mr. Hassan drew the attention of the court to the fact that the defence had not been supplied with the government analyst report or the exhibit memo; there was also a  report from Safaricom – which the defence was not aware existed.
6.    Mr. Hassan raised the objection that their defence was based on the evidence the prosecution had supplied at the beginning of the trial – that numerous witness had testified – and been cross examined without the benefit of these exhibits – that the accused persons would be prejudiced if the prosecution was allowed to proceed as they were.
7.    Ms. Nyakibia prosecuting counsel told the court that this was not intentional – that the matter had proceeded while investigations were ongoing. That even the prosecution itself had not had sight or possession of the said exhibits before that day – 21/5/2024.
8.    I gave the parties time to address me on the issue.
9.    On 22/5/2024 – Ms. Nyakibia relying on Thomas Patrick Gilbert Cholmondeley v Republic[2008] eKLR argued that investigations are always going on as the trial is ongoing and any prejudice that may be suffered by an accused person is mitigated by allowing him time to look at the documents and determine the way forward. She urged the court to be persuaded to allow the prosecution to supply the documents and to give the defence time to consider the documents and prepare their cross examination.
10.    Mr. Hassan in rebuttal submitted that the prosecution was prosecuting his clients by ambush – that the prosecution had no business charging his clients without the full evidence. That his clients would be prejudiced that they conducted pre-trial with the evidence that was supplied to them. That it was unfair and prejudicial for the prosecution not to disclose all its evidence before trial. He urged the court not to allow the documents that had not yet been supplied.
11.    I have carefully considered the submissions and the authority cited by the defence.
1.    The right to fair hearing and is  provided for under Article 50 of the Constitution. Article 50 (1) it states: - Every person has the right to have any dispute that be resolved by the application of law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body”. In my view the criminal trial also includes the Victim (s) of the Crime who have the equal right to a fair hearing. They too are prejudiced when the prosecution of the case is not conducted effectively. Justice would be served when both sides have their days in court. The omission by the Investigating Officer, the prosecution would not only prejudice the accused person but also prejudice the victim in this case.
2.    The right to disclosure of the prosecution’s case in advance is key to the right to fair trial for every accused person and is provided for under Article 50 (2) of the Constitution.  (b) “to be informed of the charge, with sufficient detail to answer it and (c) to have adequate time and facilities to prepare a defence (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; (k) to adduce and challenge evidence; ,”
3.    The prosecution has the duty to disclose to the accused person in advance the evidence they intend to use against him so that he can prepare his defence.
4.    It is also noteworthy that the prosecuting counsel submitted that the prosecution had not received the evidence before that particular hearing date. Evidently, the prosecutions failure to supply the Government Analysts report and the report from Safaricom –flies right in the face of these two rights and the concerns of prejudice raided by the defence are genuine. Ideally the Prosecution ought not to bring charges against a person when investigations are not complete. It is even worse when the Prosecuting Counsel in also nor aware that certain crucial evidence exists and is equally ambushed by an investigating officer with it on the hearing date.
5.    Obviously this raises concerns as to whether that evidence is necessary to the case for the prosecution and what would have happened if the I.O had not revealed at that stage? It must raise further concerns on the integrity of the whole process.
6.    That said the Prosecution relied on Thomas Patrick Gilbert Cholmondeley where the Court of Appeal stated …it is  now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies  of  statements of witnesses who will testify at the trial, copies of documentary  exhibits to be produced at the trial and such like items.
7.    The Court cited with approval  R V Ward [1993] 2 ALL ER 557, where it was stated …Furthermore, the prosecution were 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. And R V. STINCHCOMBE [1992] LRC (Cri) 68 where it was sated that…the obligation to disclose was a continuing one and was to be updated when additional information was received.
8.    In addition I find guidance in DENNIS EDMOND APAA & OTHERS vs ETHICS & ANTI CORRUPTION COMMISSION [2012] eKLR the where the stated: -
‘The words of Article 52(2) (j) that guarantee the right to be informed in advance cannot be read restrictively to mean in advance of the trial.  The duty imposed on the court is to ensure a fair trial for the accused person and this right of disclosure is protected by the accused being informed of the evidence before it is produced and the accused having reasonable access to it. This right is to be read together with other rights to fair trial.  Article 50(2) (c) guarantees the accused the right to have adequate facilities to prepare a defense.  This means the duty is cast on the prosecution to disclose all evidence, trial materials and witnesses to the defense during the pre-trial stage and throughout the trial.  Whenever a disclosure if made during the trial the accused must be given adequate facilities to prepare his/her defense.  The obligation to disclose was a continuing one and was to be update when additional information was received.’
9.    And in THUITA MWANGI vs THE ETHICS & ANTI CORRUPTION COMMISSION PETITION NO. 153/2013
‘The duty to disclosure is a continuing one throughout the trial.  The right to be provided with the material the prosecution wishes to rely on is not a one off event but is a process that continues throughout the process of trial from the time the trial states when plea is taken.  The reality is that there will be instances when all the information relating to investigation may not all be available at the time of charging the suspect or taking pleas.  The disclosure of evidence both exculpatory and exculpatory is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right when fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.’
10.    Ultimately the rights of the accused person is to have the evidence disclosed. Before putting the witness in the witness box sought to supply the evidence the prosecution ought to have disclosed this predicament and sought the court’s direction on the matter.
11.    Needless to say, any prejudice that would be suffered by the accused persons will be taken care of by the time they will have with counsel to review the evidence.  The application to supply the documents at this stage is allowed.
12.    To uphold this right, I would therefor give the following directions:
a.    The Prosecution to supply the defence with the documents immediately.
b.    The defence will have reasonable time to review the evidence – and to determine whether or not they will need to recall any of the prosecution witnesses.
c.    In the event that the defence will require to recall witnesses as in (b) above, the prosecution to avail those witnesses whom the defence require to be called.
13.    Orders accordingly
Dated, signed and delivered virtually on 23rd August 2024
Mumbua T Matheka
Judge
Ms Mwanatumu Court Assistant
Accused
1Present
2Present
MR Hassan Holding brief for Mr. Kituku foe 1st Accused and Mr. Kyumwa for 2nd Accused
Ms Nyakibia For State