Cholmondeley v Republic (Criminal Appeal 116 of 2007) [2008] KECA 319 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that prosecutors must hand over all evidence to the accused, but cannot demand the accused reveal their defence first.
What this practically means
#Executive summary
#Key legal issues
#Duty of the prosecution to disclose evidence to the defence
The prosecution bears a constitutional duty to disclose in advance all relevant material in its possession, including evidence it does not intend to use, and the duty continues throughout the trial; any claim of public interest immunity must be decided by the trial judge
The court endorsed the High Court decision in Juma as correctly stating the law, drawing support from R v Ward in England and R v Stinchcombe in Canada. The duty rests on section 77 of the Constitution and on the prosecutor's role as a minister of justice rather than a seeker of convictions. Material gathered by police is public property which the Attorney General must pass on to the accused.
Whether the prosecution is entitled to reciprocal disclosure from the defence
No. The rights in Chapter 5 of the Constitution protect individuals against the state; the state cannot qualify as an individual and cannot claim the same privileges, whether under section 77 or by any inherent jurisdiction of the court
The presumption of innocence and the privilege against compelled self-incrimination mean an accused has no case to disclose in advance. The state alone has the capacity to deprive individuals of their rights, and the courts must rigorously enforce fundamental rights against it. Convenience and expedition cannot justify creating non-existent rights for the prosecution.
Scope of section 60(1) and the inherent jurisdiction of the High Court
Section 60(1) confers unlimited original jurisdiction, but additional powers must be conferred by the Constitution or statute; unlike the Civil Procedure Act (section 3A), the Criminal Procedure Code contains no inherent-powers provision, and the omission is deliberate
The court contrasted the High Court's unlimited original jurisdiction with the limited jurisdictions of the Court of Appeal, magistrates' courts and Kadhis' courts. Even if an inherent power existed in criminal matters, a judge could not create non-existent rights and confer them on a party. The trial judge's order rested on no lawful foundation.
Jurisdiction of the Court of Appeal over the interlocutory appeal
The appeal was competent because the impugned order violated the appellant's fundamental rights under section 77, and the appellant properly invoked section 84(1) of the Constitution, the trial judge having allowed the appeal under section 84(7)
Section 379(1) of the Criminal Procedure Code permits ordinary criminal appeals only by convicted persons, and mere prejudice from an interlocutory order would not found an appeal. Here, however, the order's effect was to violate constitutional rights, giving the court jurisdiction. The court cautioned against such appeals interrupting trials.
Alleged breach of natural justice and bias (grounds two and eight)
Grounds two, three and eight of the appeal failed: counsel was heard, no formal constitutional application was needed, and bias was not made out
Defence counsel declined to engage with the prosecution's application and did not seek time or directions, so he could not complain of not being heard. High Court judges are constitutional judges who may address constitutional questions without formal applications. The bias allegation had no factual foundation. Only grounds one, four, five, six and seven succeeded.
Legal principles established
#- To satisfy the fair-trial guarantee in section 77 of the Constitution, the prosecution must, in advance of the trial and throughout it, disclose to the accused all relevant material, including statements of witnesses and documentary exhibits, whether or not it intends to use them; any withholding must be justified before the trial judge
- There is no reciprocity between the state and an accused person under the fair-trial provisions; the prosecution cannot claim the privileges of an accused, and the court cannot confer such rights on the prosecution through inherent powers
- Section 60(1) of the Constitution gives the High Court unlimited original jurisdiction, but any additional jurisdiction or power must be conferred by the Constitution or another law; it cannot be self-created to dilute constitutional rights of accused persons
- An accused may appeal under section 84(1) of the Constitution against an interlocutory order made during a criminal trial that violates his fundamental rights, even though no conviction has been entered
Court orders
#- 1.Appeal allowed on grounds one, four, five, six and seven of the memorandum of appeal
- 2.Ruling of Muga Apondi, J dated 27th July, 2007 set aside
- 3.All orders consequent upon that Ruling set aside
- 4.The trial before the High Court to proceed to its conclusion
- On appeal from
- High Court of Kenya at Nairobi
- H.C.Cr. Case No. 55 of 2006
- Jurisdiction invoked
- Section 84(1) and 84(7) of the (former) Constitution - appeal from a trial-court order alleged to violate the appellant's fundamental rights under section 77
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Evans Odhiambo Kidero & another v Director of Public Prosecutions (Revision)[2020] KEHC 936 (KLR)17 Dec 2020applied
- Mathew Kiprop v Republic[2020] KEHC 1857 (KLR)5 Nov 2020
- Patrick Macharia Mwangi v Republic [2020] KECA 349 (KLR)[2020] KECA 349 (KLR)25 Sept 2020followed
- Kaingo Lesakei v Republic[2017] KEHC 5738 (KLR)19 Apr 2017
- Josephine v Attorney General (Criminal Appeal 128 of 2009) [2015] KECA 407 (KLR)[2015] KECA 407 (KLR)25 Sept 2015
Cite this brief
#Cite this brief
Caselaw, "Cholmondeley v Republic (Criminal Appeal 116 of 2007) [2008] KECA 319 (KLR)", Case Analysis (2008). Criminal Appeal No. 116 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/319/eng@2008-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.