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MagistrateOtherNot stated in judgment (Criminal case, Githongo Law Courts)· [2023] KEMC 110 (KLR)

Republic v Gatwiri (Criminal Case E049 of 2023) [2023] KEMC 110 (KLR)

Magistrates' Court
30 November 2023
TST.A. Sitati
1,658 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 acquitted an accused because police took 21 days to prepare a required exhibit memo form, collapsing the prosecution's evidence.

What this practically means

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Executive summary

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The accused, Mercy Gatwiri, was charged with being in possession of alcoholic drinks without licence contrary to section 27(1)(b) as read with section 27(4) of the Alcoholic Drinks Control Act No. 4 of 2010, the particulars being that on 1st February 2023 at Nkomari village she was found in possession of 20 litres of mugacha without a licence. She denied the charge and represented herself while Prosecution Counsel Dixon Kibiti conducted the case for the DPP. Four prosecution witnesses testified: the local Chief, an Assistant Chief and an Area Manager described the night patrol, tip-off, arrest and seizure of the 20 litres; PC Anthony Changwony testified that he prepared an Exhibit Memo Form and forwarded a sample to the Government Chemist, whose analyst report found 2.0% alcohol by volume. At the close of the prosecution case, the court considered the principles on prima facie case from Ramanlal Trambaklal Bhatt v Republic, Republic v Benard Nthiwa Makau, Republic v Jagjivan M. Patel and Republic v Samuel Karanja Kiria. It found, however, that the Exhibit Memo Form was prepared on 23rd February 2023 - 21 days after the arrest - by Chief Inspector Moses Mutinda, who was not the officer who received the suspect, contrary to section 167 of the Evidence Act on contemporaneous writing. The court held the delay allowed the perishable liquid to deteriorate by fermentation and oxidation, prejudicing the chemical analysis. The Exhibit Memo Form was rejected and, as the analyst report was founded on that suspicious document, it collapsed with it. The court found doubt in how the evidence was handled and processed, held the accused had no case to answer, and acquitted her under section 210 of the Criminal Procedure Code, setting her at liberty and releasing the cash bails to depositors, with a 14-day right of appeal.

Key legal issues

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01

What constitutes a prima facie case at the close of the prosecution case

Holding

A prima facie case is one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence; a mere scintilla of evidence is not enough.

Reasoning

The court adopted the classic formulation in Ramanlal Trambaklal Bhatt v Republic as recently reapplied by Wakiaga J in Republic v Benard Nthiwa Makau, and also the test in Republic v Jagjivan M. Patel that the court need only find a case sufficiently requiring the accused to make a defence, without conducting a detailed final analysis of the evidence.

p. 2
02

Admissibility and probative value of a delayed exhibit memorandum form under section 167 of the Evidence Act

Holding

An exhibit memo form prepared 21 days after arrest by an officer who never received the suspect contravenes section 167 of the Evidence Act and is rejected; without it, the analyst report collapses as it is founded on a suspicious document.

Reasoning

The court found the exhibit memo was prepared by Chief Inspector Moses Mutinda on 23rd February 2023, though the arrest and seizure occurred on 1st February 2023 and the memo's author was not the receiving officer. The delay also allowed the seized liquid to deteriorate by fermentation and oxidation, prejudicing the chemical analysis, and leaves room for interference with evidence.

p. 4

Legal principles established

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  • An exhibit memorandum form should be prepared promptly - ideally within 24 hours of arrest - as required by section 167 of the Evidence Act ('so soon afterwards'); delayed preparation destroys its probative value and can prejudice chemical analysis of perishable exhibits.

Court orders

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  1. 1.The Exhibit Memo Form is rejected for contravening section 167 of the Evidence Act
  2. 2.The accused person has no case to answer and is acquitted under section 210 of the Criminal Procedure Code
  3. 3.The accused is set at liberty unless otherwise lawfully held
  4. 4.Cash bails released to depositors
  5. 5.Right of appeal is 14 days
Jurisdiction invoked
Original criminal jurisdiction over offences under the Alcoholic Drinks Control Act No. 4 of 2010, section 27(1)(b) as read with section 27(4)

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 Gatwiri (Criminal Case E049 of 2023) [2023] KEMC 110 (KLR)", Case Analysis (2023). Not stated in judgment (Criminal case, Githongo Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/110/eng@2023-11-30

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