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MagistrateDismissed· [2017] KEMC 122 (KLR)

Republic v Namuye & 4 others (Anti-Corruption Case 13 of 2016) (Anti-Corruption and Economic Crimes) [2017] KEMC 122 (KLR)

Chief Magistrate's Court (Criminal Division)
13 June 2017
836 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that organisations only have to hand over documents they still hold, even when facing criminal charges, and closed the supply issue.

What this practically means

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Executive summary

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This ruling by Chief Magistrate L.N. Mugambi resolves a defence complaint of non-compliance with a court order of 20 January 2017 requiring Youth Enterprise Development Fund, the complainant, to supply all relevant documents to accused persons facing criminal charges. Defence counsel submitted that supply had been piecemeal and unsatisfactory, that the outstanding documents were critical, and that the Fund's Chief Executive Officer and ICT Officer should be cross-examined on affidavits explaining why some documents could not be retrieved, allegedly because ICT equipment had crashed. Counsel for the Fund maintained it had supplied all documents it could trace, and the DPP stated all prosecution documents had been supplied. The court examined the affidavit of Moriasi Arabu Josiah sworn 6 June 2017, which explained that the mail system crashed in November 2016, destroying documents. That evidence was unrebutted, so the court took it as prima facie truth. It held that a party can only be compelled to produce documents in its possession and custody, and once it demonstrates to the court's satisfaction that the documents are not in its custody, it is relieved of the obligation. Cross-examination of the deponents was declined, no contradiction having been shown. The court ordered that the case proceed on the documents already supplied, closed the issue of supply through the Fund, allowed the defence to seek documents elsewhere, and directed that the case be set down for hearing.

Key legal issues

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01

Extent of the obligation to supply documents where the documents cannot be traced

Holding

The obligation to supply documents is discharged once the custodian demonstrates, on uncontradicted evidence, that the documents are not in its possession or custody

Reasoning

The court examined the affidavits of the Fund's CEO and ICT Officer, who explained that the mail system crashed in November 2016 destroying documents. That evidence was unchallenged, so the court accepted it as prima facie true. Since a party cannot supply what it does not have, the Fund was relieved of further obligations and the issue of supply through it was closed.

p. 2
02

Whether cross-examination of the deponents of the affidavits was necessary

Holding

Cross-examination was declined because no contradiction in the affidavits was demonstrated to warrant clarification

Reasoning

The defence sought to cross-examine the CEO and ICT Officer to test the truth of their explanations. The Fund's counsel and the DPP maintained there was no contradiction. The court accepted the unrebuted affidavit evidence as prima facie true and found no basis to require the deponents on the witness stand.

p. 3

Legal principles established

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  • A party can only be compelled to supply documents in its possession and custody; once it demonstrates to the court's satisfaction that the documents are not in its custody, it is relieved of the obligation

Court orders

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  1. 1.The case will proceed on the basis of documents already supplied
  2. 2.The matter of supply of documents through Youth Enterprise Development Fund is closed
  3. 3.The defence may seek the outstanding documents through any other means
  4. 4.The case to be set down for hearing
Jurisdiction invoked
Criminal jurisdiction of the magistrate's court over the charges facing the accused persons; application anchored on the accused's constitutional right to a fair trial

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Namuye & 4 others (Anti-Corruption Case 13 of 2016)  (Anti-Corruption and Economic Crimes) [2017] KEMC 122 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/122/eng@2017-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.