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MagistrateDismissedNot stated in the judgment· [2023] KEMC 264 (KLR)

Director of Public Prosecutions v Tawa (Criminal Case 010 of 2023) [2023] KEMC 264 (KLR)

Magistrates' Court at Kwale
8 May 2023
2,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kwale court ruled the prosecution doesn't have to get doctors' written statements for the defence, as long as medical reports were shared beforehand.

What this practically means

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Executive summary

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The Accused, Japheth Chidima Tawa, faces a charge of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006, with particulars alleging penetration of the anus of a 15-year-old girl in Kwale County in September 2022. After the pre-trial conference, defence counsel Mr. Rono made an oral application seeking an order compelling the medical officer (listed as the third witness) to record a witness statement, contending that medical practitioners use technical terminology in oral testimony that cannot be anticipated from the supplied documents, thereby hampering cross-examination. He anchored the application on Articles 25 and 50(2)(j) of the Constitution and relied on Ahmed Abdullahi Maalim v Republic [2022] (which itself relied on Thomas Chomodley v Republic) and Robert Muli Matoro v Republic [2005]. Prosecution counsel Mr. Khamis opposed the application, pointing out that the clinical officer's observations were already recorded in the P3 form, PRC form and medical treatment notes, that a clinical officer is an expert witness, and that the prosecution had discharged its constitutional mandate by supplying the evidence it intends to rely on. Resident Magistrate Kiongo Kagenyo acknowledged the practical problem of medical practitioners being economical on standard forms yet verbose in the witness box, potentially amounting to trial by ambush. However, the court held that medical practitioners are expert witnesses under section 48 of the Evidence Act; that a trial can accommodate pauses to prepare, including applications to stand down or recall a witness under Article 50(5)(a); and that the essence of Article 50(2)(j) is preparation, not supply of every document the defence desires. Declining to make a sweeping declaration of general application - which it considered beyond its jurisdiction and the preserve of the High Court - the court disallowed the application.

Key legal issues

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01

Whether the court can compel a medical officer to record a witness statement

Holding

The application was disallowed; the medical practitioner's documented evidence (P3, PRC and medical treatment notes) suffices as the evidence supplied in advance, and the accused's remedy lies in an application to stand down or recall the witness, not in compelling a fresh statement

Reasoning

The court acknowledged the practical problem that medical practitioners are often economical on the standard forms but verbose in oral testimony, which may amount to trial by ambush. However, it held that the accused's fair-trial rights are adequately protected by the existing evidence on record and the ability to apply for supply of the recorded evidence under Article 50(5)(a). The court also noted its limited jurisdiction and confined its finding to the instant case, observing that each case depends on its own merits.

p. 4
02

Whether the prosecution's supply of the P3, PRC and medical treatment notes discharged the Article 50(2)(j) obligation

Holding

The prosecution discharged its constitutional mandate by supplying in advance the evidence it intends to rely on; the essence of supply in advance is to enable preparation, not to guarantee the defence every desired document

Reasoning

The court held that preparedness is a personal responsibility and that limitations in preparation should not be equated with an unfair trial. The right to be supplied with evidence in advance under Article 50(2)(j) is properly understood as a right to the evidence the prosecution intends to rely on, which was already supplied. The defence's desire for additional synthesis from the medical officer does not render the supply constitutionally deficient.

p. 2
03

Jurisdictional limitation - whether the court could issue a sweeping order compelling all medical practitioners to record statements

Holding

The court declined to make a sweeping declaration, confining itself to the instant case, as such a general order is beyond its jurisdiction

Reasoning

The court noted that the nature of the application was for a sweeping order of general application to medical practitioners, which it considered a matter beyond its mandate. It therefore confined its findings to the singular case as invited by the defence, without making any general pronouncement on the practice.

p. 3

Legal principles established

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  • Medical practitioners are expert witnesses within the meaning of section 48 of the Evidence Act and are not, as a matter of course, required to record witness statements
  • A trial is a process that can accommodate pauses to prepare, including an application to stand down or recall a witness for further cross-examination
  • Non-supply of what the defence desires is not, of itself, a breach of Article 50(2)(j) of the Constitution; preparedness in a trial is a personal responsibility of counsel

Court orders

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  1. 1.The application for an order compelling the medical officer to record a witness statement is disallowed
  2. 2.Ruling dated, signed and delivered in open court at Kwale on 8th May 2023

Authorities

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Legislation

  • Sexual Offences ActSection 8(1) as read with Section 8(3)
  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 50(2)(j)
  • Constitution of KenyaArticle 50(5)(a)
  • Evidence ActSection 48

Cases cited (3)

  • Ahmed Abdullahi Maalim -v- Republic
    [2022]
  • Thomas Chomodley -v- Republic
  • Robert Muli Matoro -v- Republic
    [2005]
Jurisdiction invoked
Criminal jurisdiction of the magistrates' court over an offence of defilement under the Sexual Offences Act No. 3 of 2006, sections 8(1) as read with 8(3)

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, "Director of Public Prosecutions v Tawa (Criminal Case 010 of 2023) [2023] KEMC 264 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/264/eng@2023-05-08

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