Republic v Itiko & another (Anti-Corruption Case 4 of 2012) (Anti-Corruption and Economic Crimes) [2016] KEMC 2 (KLR)
The bottom line
#A Kenyan court confirmed defence teams can get crucial documents even from third parties, not just from prosecutors, to guarantee a fair trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution has a duty to disclose documents it does not intend to rely on in the trial
- 2.Whether documents in the possession of a third party (the National Water Conservation and Pipeline Corporation) can be released to the defence through a court order to ensure a fair trial
Key legal issues
#Scope of prosecution disclosure under Article 50(2)(c) and (j)
The court followed the reasoning in Raphael Muoki that the prosecution's duty extends beyond evidence it intends to use, to achieve a fair trial, but disclosure is only binding where the prosecution has possession of the material.
The court reviewed two conflicting 2015 High Court decisions. Ngenye J in Diana Kethi Kilonzo held disclosure extends only to evidence relied upon. Mutuku J in Raphael Muoki held that reading the fair trial provisions expansively imposes a broader duty. The court aligned itself with the latter, purposive approach, but noted the duty is conditioned on possession of the documents.
Defence access to documents held by a third party
The court issued an order directed at the Corporation to release certified copies of the documents, failing which the responsible officer would be summoned to explain.
Because the defence is entitled to confront and challenge the State's evidence, it is entitled to the court's aid to obtain documents crucial to its defence, even at that stage of the trial. Since the documents were held by NWCPC and not the prosecution, the appropriate order ran against the Corporation.
Legal principles established
#- The sub-rights under Article 50(2) of the Constitution must be read in the wider context of achieving the objective of a fair trial
- The prosecution's disclosure duty covers documents it does not deem relevant, but only if they are in its possession
Court orders
#- 1.An order directed at the National Water Conservation and Pipeline Corporation to release to Defence Counsel certified copies of the documents detailed in the letter by Counsel for the 2nd accused dated 13/10/2016
- 2.If the documents cannot be released, the responsible officer in the corporation to be summoned to Court to render an explanation for the record
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Fair trial rights under Article 50(2) of the Constitution of Kenya, 2010
Relief refused
#Order compelling the prosecution to furnish the sought documents
The documents are not in the possession of the prosecution but of the Corporation, so the prosecution cannot be required to furnish them
Costs
No costs order made (criminal proceedings)
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.
the sub-rights under article 50(2) of the Constitution must be read in the wider context of achieving the objective of a fair trial
the Defence is entitled to confront and challenge the evidence adduced by the State against it. In doing so, it may require the information it now seeks
If for any reason the said documents cannot be released, then the responsible oficer in the corporation will be summoned to Court to render an explanation for the record
Issues in the judgment
#The case number and station of the court are not stated anywhere in the judgment
The judgment body refers to the request being raised on 13/10/2016, but the closing date line reads 19.10.2016 / 19th October 2016; the letters dated 3/3/2014 and 13/10/2016 are stated to seek 'about 22 documents' without a precise number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Itiko & another (Anti-Corruption Case 4 of 2012) (Anti-Corruption and Economic Crimes) [2016] KEMC 2 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/2/eng@2016-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.