Republic v Namuye & 4 others (Anti-Corruption Case 13 of 2016) (Anti-Corruption and Economic Crimes) [2017] KEMC 122 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Extent of the obligation to supply documents where the documents cannot be traced
The obligation to supply documents is discharged once the custodian demonstrates, on uncontradicted evidence, that the documents are not in its possession or custody
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.
Whether cross-examination of the deponents of the affidavits was necessary
Cross-examination was declined because no contradiction in the affidavits was demonstrated to warrant clarification
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.
Legal principles established
#- 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
#- 1.The case will proceed on the basis of documents already supplied
- 2.The matter of supply of documents through Youth Enterprise Development Fund is closed
- 3.The defence may seek the outstanding documents through any other means
- 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
#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 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.