Republic v Namuye & 4 others (Anti-Corruption Case 13 of 2016) (Anti-Corruption and Economic Crimes) [2017] KEMC 120 (KLR)
The bottom line
#A Kenyan court ruled that while prosecutors can't hand over documents they don't have, the state agency behind the charges must provide records the accused need for their defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the obligation and extent thereof, on the part of the prosecution in so far as providing access to the evidential material in a criminal case is concerned?
- 2.Is the first respondent Youth Enterprise Development Fund which is neither an investigator nor a prosecutor in this case bound to provide access to documents shown to be under its custody or care to the defence/applicants if such documents are vital in their preparation of defence?
- 3.Are the documents sought by the defence/applicants properly defined or is it a sweeping and speculative request that would be oppressive to implement?
Key legal issues
#Extent of the prosecution's disclosure obligation
The prosecution must give the accused advance notice of and reasonable access to the evidence it intends to rely on, and judicial interpretation extends this to unused evidence in the prosecution's possession; but it cannot be compelled to disclose evidence it does not possess
Article 50(2)(j) guarantees the accused access to evidence the prosecution intends to rely on, which duty had been fulfilled. Authorities including Cholmondeley extend the duty to unused material in the prosecution's possession. However, Kethi Kilonzo confirms no party, however powerful, can be compelled to disclose what it does not have. DPP and EACC swore the documents were not in their possession and would not be relied on.
Whether YEDF, neither investigator nor prosecutor, is bound to supply documents to the defence
Yes; YEDF was properly joined, is an interested party and a state agency, and must furnish documents in its possession under Article 35(1)(b)
The charges arise from the applicant's tenure as CEO of YEDF, so most witnesses and documents will come from it; it cannot disclaim interest. As a state agency holding information required for the exercise or protection of rights, Article 35(1)(b) entitles the court to compel it to furnish documents enabling the accused to challenge the evidence.
Whether the documents sought are properly defined
The request as cast was speculative and oppressive; further particulars, including specific dates, are required, though annual documents like budgets and procurement plans may be requested on a yearly basis
The application sought documents covering five full financial years — all audit committee, tender committee and board records — which would be akin to transferring YEDF's entire records registry for five years to the defence. Particulars are needed; the applicants may start with registers summarising meetings and work outwards, to scale down volume and avoid delay.
Legal principles established
#- The prosecution's duty to disclose extends to evidence in its possession which it does not intend to use at trial, but extends only to such evidence as it actually possesses
- A party, even a state agency, cannot be compelled to disclose evidence not in its custody and which it will not rely upon
- A state agency that is the source of the charges and custodian of documents may be compelled under Article 35(1)(b) to furnish documents to the accused for preparation of defence
- Requests for documents in criminal proceedings must be sufficiently defined and specific; blanket requests covering entire financial years are oppressive
Court orders
#- 1.DPP and EACC cannot be compelled to supply the documents sought as the documents are not in their possession and will not be relied upon
- 2.YEDF, as a state agency and source of the charges, is required to furnish documents in its possession relevant to the accused's defence under Article 35(1)(b)
- 3.Defence/applicants to write to YEDF forthwith with further particulars, including specific dates of meetings whose minutes they seek
- 4.YEDF to respond within seven (7) days; all correspondence copied to all parties and the court
- 5.The exercise is allocated two weeks
- 6.Mention on the 21st day from the date of the ruling to fix new hearing dates for the trial to commence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 35(1)(a) and (b), 50(1)(a), 50(2)(j) and (k) of the Constitution; Section 42(a) of the Criminal Procedure Code
Relief refused
#Compelling the DPP and EACC to supply the documents enumerated in the application
The documents are not in the possession of the DPP or EACC, were not used by them and will not be relied upon at trial
A blanket supply of all operational documents of YEDF for five financial years as worded in the application
The request as cast was speculative and oppressive; further particulars required
Costs
No order as to costs made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I will allocate that exercise two weeks. The defence /applicants shall write to the Youth Enterprise Development Fund forthwith with necessary and further particulars as ordered by this court and the YEDF will respond within the next (7)days. All correspondence exchange must be copied to all the parties and the court.
On the 21st day from today’s date, this matter shall be mentioned in court to fix new hearing dates for the trial to commence.
In essence, I find under article 35(1) (b) of the Constitution, this court is entitled to uphold this right and require the 1st respondent to furnish such documents which are in its possession to enable the accused challenge the evidence against them.
This court would be failing in its constitutional and statutory obligations if it were to deny them access to such documents whether they are in the hands of 3rd party or not and the court believes it has the requisite power to compel compliance.
It looks speculative and granting the order sought would be oppressive to the 1st respondent.
Issues in the judgment
#The name of the Cholmondeley authority is spelled inconsistently within the judgment ('Thomas Gilbert Chomodley Vs Republic (2008) eKR' in submissions versus 'Thomas Patrick Gilbert Cholmodely vs Republic Criminal Appeal No 116 of 2007' in the court's analysis)
The case number of the criminal trial and the court station are not stated in the judgment; the application is only identified as filed by 'the 1st Accused herein'
Submissions refer to 'Mr. Mogere for 3rd and 4th accused' and the ruling is read in the presence of counsel for the 3rd and 5th accused, implying additional accused persons not party to this application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Namuye & 4 others (Anti-Corruption Case 13 of 2016) (Anti-Corruption and Economic Crimes) [2017] KEMC 120 (KLR)", Case Analysis (2017). Not stated in judgment (criminal case; applicant is 1st Accused herein). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/120/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.