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Court of AppealDismissedCivil Appeal No. 266 of 2018· [2020] KECA 756 (KLR)

Mutinda v Ethics And Anti-Corruption Commission (Civil Appeal 266 of 2018) [2020] KECA 756 (KLR)

Court of Appeal
24 April 2020
2,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a dead witness's earlier statement can still be used in court without violating anyone's right to a fair trial.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued the appellant to recover Kshs.283,200,200 lost by the City Council of Nairobi in a fraudulent land transaction involving the late Henry Musyoki Kilonzi's parcel L.R No.14759/2, purchased for use as a public cemetery. After Kilonzi died in July 2016 while the suit was pending, the Commission applied to have his statement produced by the investigating officer, not to prove its contents but to prove that the statement was made. Ong'udi J allowed the application on 7th June 2018, and the appellant appealed, contending that production of the statement without cross-examination of its maker would breach his right to a fair trial under Articles 25(c) and 50(2)(k) of the Constitution. The respondent first challenged the Court's jurisdiction because the appellant had not sought leave to appeal. The Court of Appeal (Musinga, Gatembu Kairu and M'Inoti, JJ.A.) held that it had jurisdiction, since the appeal engaged an alleged breach of a Bill of Rights freedom and the right of appeal on such questions is subsumed in Article 164(3). On the merits, the Court found the statement admissible under section 34 of the Evidence Act, having been given in previous proceedings; it had been served with the plaint since August 2012, its maker had testified and been cross-examined in a related criminal case, and the investigating officer would lay the basis for production and prove the death. Production for the limited purpose of proving the statement was made could not prejudice the appellant, and the weight to be given to it remained for the trial court. The judge had exercised her discretion judiciously. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the Court of Appeal absent leave to appeal

Holding

The Court has jurisdiction because the appeal engages an alleged breach of a fundamental freedom in the Bill of Rights, and the right of appeal on such questions is subsumed in Article 164(3) of the Constitution.

Reasoning

Applying Judicial Service Commission v Kalpana H. Rawal, the Court held that where a party contends that a High Court decision breaches a Bill of Rights freedom, the right of appeal exists under Article 164(3) regardless of whether leave was sought or granted. Following Nyarangi J in the Lillian S case, jurisdiction is everything; having found jurisdiction, the Court proceeded to the merits. Leave was possibly unnecessary in the first place.

p. 2
02

Admissibility of a deceased witness's statement and the right to a fair trial

Holding

The statement was admissible under section 34 of the Evidence Act and its production solely to prove that the deceased made it does not prejudice the appellant or breach his right to a fair trial.

Reasoning

The statement had been served with the plaint since August 2012, so the appellant was not taken by surprise; the maker had testified and been cross-examined in a related criminal case; the Investigating Officer would lay the basis for production and prove death; and the trial court would determine the weight to give the statement. Production for the limited purpose of proving the statement was made could not be prejudicial.

p. 3
03

Interference with judicial discretion

Holding

The learned judge exercised her discretion judiciously in allowing production of the statement, so the appellate court would not interfere.

Reasoning

Applying the Mbogo v Shah standard invoked by the respondent, the Court found no misdirection, no irrelevant consideration taken into account, no relevant matter overlooked, and no clear error. Given the limited purpose of production, the service of the statement years earlier, and the prior cross-examination of its maker, the discretion was properly exercised and the appeal lacked merit.

p. 3

Legal principles established

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  • Where an appellant's contention engages a fundamental freedom in the Bill of Rights, the Court of Appeal has jurisdiction to hear an appeal from a High Court decision on that question even in the absence of leave to appeal, if such leave was ever necessary
  • A deceased witness's statement that was recorded, filed and served with the plaint, and whose maker testified and was cross-examined in previous proceedings, is admissible under section 34 of the Evidence Act and may be produced by an investigating officer solely to prove that the statement was made, without breaching the fair-trial rights of the opposing party; the weight to be attached is for the trial court

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 50(2)(k)
  • Constitution of Kenya, 2010Article 164(3)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 11 rule 2
  • Civil Procedure RulesOrder 11 rule 3(2)(c)
  • Civil Procedure RulesOrder 50 rule 1
  • Evidence ActSection 33
  • Evidence ActSection 34
  • Evidence ActSection 35
  • Evidence ActSection 36

Cases cited (5)

  • Owners of Motor Vehicle “Lillian S” v Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Judicial Service Commission v Kalpana H. Rawal
    [2015] eKLR
  • Republic v John Ng'ang'a Njeri
    (2018) eKLR
  • Mbogo v Shah
    [1968] E.A. 93
  • Subramaniam v Public Prosecutor
On appeal from
Anti-Corruption and Economic Crimes Court of Kenya at Nairobi (High Court)
A.C.E.C.C. Suit No. 15 of 2016 (formerly HCCC No. 400 of 2012)
Jurisdiction invoked
Article 164(3) of the Constitution - the right of appeal is subsumed in Article 164(3), conferring jurisdiction to hear appeals from decisions of the High Court on the Bill of Rights

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, "Mutinda v Ethics And Anti-Corruption Commission (Civil Appeal 266 of 2018) [2020] KECA 756 (KLR)", Case Analysis (2020). Civil Appeal No. 266 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/756/eng@2020-04-24

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