1. On 23 rd of July 2026 Mr. Naulikha Senior Assistant Director Of Public Prosecutions applied to recall PW5 one Joseph Ikutha Kisilu who had already testified in chief and had been cross examined and re-examined.
2. Mr. Naulikha submitted that the purpose of recalling PW5 was to have the witness produce photographs that he was said to have taken of a motor vehicle that belonged to the deceased which was burned within the area where he lived and had captured photographic evidence of the same. Counsel told the court that the photographs had already been processed and the prosecution intended to rely on the same in support of their case despite the fact the witness was not a gazetted officer for purposes of taking photographic evidence as envisaged under Section 78 of the Evidence Act Cap 80 of the Laws of Kenya.
3. The witness was said to have captured images of the subject motor vehicle using his mobile phone and in the prosecutions view the evidence was material and necessary for the just determination of the case.
4. Mr. Kiverenge advocate for the accused person opposed the recalling of the witness citing Articles 49 and 50 of the Constitution and argued that if the witness was to be recalled that would amount to a denial of the fair trial rights of the accused person. Couse further submitted that he had not been supplied with the photos and therefore in his view the prosecution intended to fill gaps by recalling the witness. Counsel therefore urged the court to reject the application and proceed with the matter with the remaining witnesses.
5. This court is conducting a trial for the offence of Murder contrary to Section 203 as read with 204 of the Penal whereof it alleged the accused person on the night of 24th and 25th April 2023 within Nairobi County jointly with others not before court murdered JAMES GITAU NGANGA.
6. The court has so far received evidence from 11 prosecution witnesses and it is clear from the evidence so far received that at the time the deceased met his death he was a taxi operator and the vehicle that he used at the time was motor vehicle KCT 651U white in color. It is that same motor vehicle that prosecution witnesses alleged was seen parked within Kayole , Obama area and was later burned down immediately after the arrest of the accused person.
7. The prosecution’s case is that PW5 Joseph Ikutha Kisilu saw the motor vehicle on the night of 24 th April 2023 parked within the area where he was working but he had not seen the person who parked the motor vehicle. According to the witness motor vehicle KCT 651U remained parked within the area and on 30 th April 2023 he decided to take photographs of the same since at the time he was working as a watchman of the premises where this vehicle was parked.
8. PW5 testified that he was the person who called the OCS Obama police station to inform him about the motor vehicle but did not get the OCS immediately on phone. He however managed to get an officer by the name Oscar who advised him to photograph the vehicle and sent him the photos. The witness went on to testify that he indeed took photos of the vehicle and shared them with the officer by the name Oscar as well as the OCS. The witness went on to say that at the same night, after he had sent photos, at about 4:00 a.m he saw the motor vehicle on fire, he called the OCS and informed him. Police officers went to the scene and towed the motor vehicle to the station. This is the witness that prosecution intends to recall only for purposes of production of the photographs.
9. It is the view of this court that PW5 is a material witness and his evidence is crucial and important for the just determination of this case. The witness having testified before me, struck this court as a witness of truth who purely stumbled on the motor vehicle in the course of his duty. He took the photographs as he went about his business as a watchman and under instructions of the police after he had made a report to them of the presence of the motor vehicle within the premises he was guarding.
10. He his a material witness and his evidence is relevant to the proceedings thus allowing him to be recalled for purposes of production of the photos would in my humble view advance the course of justice. I reject the argument by the defence that to allow him to be recalled, this court would be aiding the prosecution to fill gaps in their case. As a matter of fact, the witness had already told the court that he took photographs therefore to have him recalled for the limited purpose of producing the photographs that would not amount to adducing new evidence or the filling of gaps by the prosecution.
11. Sections 78 A, 106 A and 106B of the Evidence Act make elaborate provisions on the manner of production and admission of electronic and digital records. It is important to state that images captured through the use of a mobile phone fall precisely within digital and electronic evidence.
12. A party who wishes to rely on such evidence would be required to call the person by whom such evidence was captured, stored or processed and provide a certificate in support of the evidence to confirm the authenticity of such material and its originality. What the prosecution intends to do in this case is precisely within the law and cannot be said to be an after -thought or a move calculated to introduce new evidence as contended by the defence.
13. PW5 having stated that he took the photos his evidence regarding those photos is directly relevant to these proceedings and the court by dint of Section 150 of the Criminal Procedure Code is inclined to allow him to be recalled for purposes of producing the photos.
14. The fact that the witness sent the photos to the police officers does not lessen the need to have him produce the photos since he was the primary source of that photographic evidence.
15. In Smriti Madan Kansagra v. Perry Kansagra, reported in (2021) 12 SCC 289 the court held that the certificate under Section 65B must meet the requirements that the messages allegedly forwarded from the mobile phone of the defendant to the mobile phone of the plaintiff and thereafter to the e-mail ID of the plaintiff, proof of such message; and necessity of certifying source of the messages allegedly received on the mobile phone of the defendant. Merely, stating that the contents of the e-mail placed on the record was the same as contents of the e-mail in the inbox. This certificate does not certify the source of the messages allegedly received on the mobile phone, wherefrom the message had been forwarded to the email ID. In absence of the certificate under Section 65B of the Indian Evidence Act with respect of source of same cannot be accepted as being genuine or authentic. (emphasis added)
16. The evidence of the police officers to whom the photos were sent would not be sufficient to prove the genuiness and authenticity of the photos thus the need to recall PW5.
17. The defence argued that they were not supplied with the photos thus to allow to allow the witness to produce the photo without an advance copy to them would be prejudicial to the accused. That I agree but the solution is not to exclude the evidence of PW5 regarding the photos. The quick answer to that concern is that the prosecution be and hereby directed to make copies of the photographs available to the accused person’s counsel at least 14 days before the next hearing in order to enable the accused person and his counsel to adequately prepare to confront the witness when he appears to tender his evidence.
18. The denial of an adequate opportunity to the accused would be against the express provisions of Article 50 of the Constitution and the prosecution should henceforth avoid disclosure by instalments to accused persons.
19. In Mboya v Republic (Criminal Appeal 180 of 2023) [2025] KEHC 9279 (KLR) (30 June 2025) (Ruling) the court held that :
“ The trial court retains the power to recall witnesses before the defence closes its case. This court, under its inherent jurisdiction and section 146(4) of the Evidence Act, may issue orders necessary to advance justice or prevent abuse of process. The evidence sought to be recalled is critical to the fair resolution of this case. As supported by Article 50(1) of the Constitution and relevant case law, justice demands that all parties be given a full and fair opportunity to present and test evidence. Refusing the recall of PW13, despite serious concerns over the accuracy of his evidence, would undermine these principles.”
20. This court therefore having determined that the evidence sought to be adduced through Pw 5 is relevant and crucial to the just determination of the case, hereby allows the recalling of the witness and the prosecution shall ensure that the defense is supplied with the photos and the necessary certificate at least 14 days to the hearing.
21. It is so ordered.
2. Mr. Naulikha submitted that the purpose of recalling PW5 was to have the witness produce photographs that he was said to have taken of a motor vehicle that belonged to the deceased which was burned within the area where he lived and had captured photographic evidence of the same. Counsel told the court that the photographs had already been processed and the prosecution intended to rely on the same in support of their case despite the fact the witness was not a gazetted officer for purposes of taking photographic evidence as envisaged under Section 78 of the Evidence Act Cap 80 of the Laws of Kenya.
3. The witness was said to have captured images of the subject motor vehicle using his mobile phone and in the prosecutions view the evidence was material and necessary for the just determination of the case.
4. Mr. Kiverenge advocate for the accused person opposed the recalling of the witness citing Articles 49 and 50 of the Constitution and argued that if the witness was to be recalled that would amount to a denial of the fair trial rights of the accused person. Couse further submitted that he had not been supplied with the photos and therefore in his view the prosecution intended to fill gaps by recalling the witness. Counsel therefore urged the court to reject the application and proceed with the matter with the remaining witnesses.
5. This court is conducting a trial for the offence of Murder contrary to Section 203 as read with 204 of the Penal whereof it alleged the accused person on the night of 24th and 25th April 2023 within Nairobi County jointly with others not before court murdered JAMES GITAU NGANGA.
6. The court has so far received evidence from 11 prosecution witnesses and it is clear from the evidence so far received that at the time the deceased met his death he was a taxi operator and the vehicle that he used at the time was motor vehicle KCT 651U white in color. It is that same motor vehicle that prosecution witnesses alleged was seen parked within Kayole , Obama area and was later burned down immediately after the arrest of the accused person.
7. The prosecution’s case is that PW5 Joseph Ikutha Kisilu saw the motor vehicle on the night of 24 th April 2023 parked within the area where he was working but he had not seen the person who parked the motor vehicle. According to the witness motor vehicle KCT 651U remained parked within the area and on 30 th April 2023 he decided to take photographs of the same since at the time he was working as a watchman of the premises where this vehicle was parked.
8. PW5 testified that he was the person who called the OCS Obama police station to inform him about the motor vehicle but did not get the OCS immediately on phone. He however managed to get an officer by the name Oscar who advised him to photograph the vehicle and sent him the photos. The witness went on to testify that he indeed took photos of the vehicle and shared them with the officer by the name Oscar as well as the OCS. The witness went on to say that at the same night, after he had sent photos, at about 4:00 a.m he saw the motor vehicle on fire, he called the OCS and informed him. Police officers went to the scene and towed the motor vehicle to the station. This is the witness that prosecution intends to recall only for purposes of production of the photographs.
9. It is the view of this court that PW5 is a material witness and his evidence is crucial and important for the just determination of this case. The witness having testified before me, struck this court as a witness of truth who purely stumbled on the motor vehicle in the course of his duty. He took the photographs as he went about his business as a watchman and under instructions of the police after he had made a report to them of the presence of the motor vehicle within the premises he was guarding.
10. He his a material witness and his evidence is relevant to the proceedings thus allowing him to be recalled for purposes of production of the photos would in my humble view advance the course of justice. I reject the argument by the defence that to allow him to be recalled, this court would be aiding the prosecution to fill gaps in their case. As a matter of fact, the witness had already told the court that he took photographs therefore to have him recalled for the limited purpose of producing the photographs that would not amount to adducing new evidence or the filling of gaps by the prosecution.
11. Sections 78 A, 106 A and 106B of the Evidence Act make elaborate provisions on the manner of production and admission of electronic and digital records. It is important to state that images captured through the use of a mobile phone fall precisely within digital and electronic evidence.
12. A party who wishes to rely on such evidence would be required to call the person by whom such evidence was captured, stored or processed and provide a certificate in support of the evidence to confirm the authenticity of such material and its originality. What the prosecution intends to do in this case is precisely within the law and cannot be said to be an after -thought or a move calculated to introduce new evidence as contended by the defence.
13. PW5 having stated that he took the photos his evidence regarding those photos is directly relevant to these proceedings and the court by dint of Section 150 of the Criminal Procedure Code is inclined to allow him to be recalled for purposes of producing the photos.
14. The fact that the witness sent the photos to the police officers does not lessen the need to have him produce the photos since he was the primary source of that photographic evidence.
15. In Smriti Madan Kansagra v. Perry Kansagra, reported in (2021) 12 SCC 289 the court held that the certificate under Section 65B must meet the requirements that the messages allegedly forwarded from the mobile phone of the defendant to the mobile phone of the plaintiff and thereafter to the e-mail ID of the plaintiff, proof of such message; and necessity of certifying source of the messages allegedly received on the mobile phone of the defendant. Merely, stating that the contents of the e-mail placed on the record was the same as contents of the e-mail in the inbox. This certificate does not certify the source of the messages allegedly received on the mobile phone, wherefrom the message had been forwarded to the email ID. In absence of the certificate under Section 65B of the Indian Evidence Act with respect of source of same cannot be accepted as being genuine or authentic. (emphasis added)
16. The evidence of the police officers to whom the photos were sent would not be sufficient to prove the genuiness and authenticity of the photos thus the need to recall PW5.
17. The defence argued that they were not supplied with the photos thus to allow to allow the witness to produce the photo without an advance copy to them would be prejudicial to the accused. That I agree but the solution is not to exclude the evidence of PW5 regarding the photos. The quick answer to that concern is that the prosecution be and hereby directed to make copies of the photographs available to the accused person’s counsel at least 14 days before the next hearing in order to enable the accused person and his counsel to adequately prepare to confront the witness when he appears to tender his evidence.
18. The denial of an adequate opportunity to the accused would be against the express provisions of Article 50 of the Constitution and the prosecution should henceforth avoid disclosure by instalments to accused persons.
19. In Mboya v Republic (Criminal Appeal 180 of 2023) [2025] KEHC 9279 (KLR) (30 June 2025) (Ruling) the court held that :
“ The trial court retains the power to recall witnesses before the defence closes its case. This court, under its inherent jurisdiction and section 146(4) of the Evidence Act, may issue orders necessary to advance justice or prevent abuse of process. The evidence sought to be recalled is critical to the fair resolution of this case. As supported by Article 50(1) of the Constitution and relevant case law, justice demands that all parties be given a full and fair opportunity to present and test evidence. Refusing the recall of PW13, despite serious concerns over the accuracy of his evidence, would undermine these principles.”
20. This court therefore having determined that the evidence sought to be adduced through Pw 5 is relevant and crucial to the just determination of the case, hereby allows the recalling of the witness and the prosecution shall ensure that the defense is supplied with the photos and the necessary certificate at least 14 days to the hearing.
21. It is so ordered.