Njoroge v Republic (Criminal Case 14 of 2015) [2025] KEHC 19591 (KLR) (29 April 2025) (Ruling) Neutral citation: [2025] KEHC 19591 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MURANG'A CRIMINAL CASE 14 OF 2015 CW GITHUA, J APRIL 29, 2025 BETWEEN STEPHEN IRUNGU NJOROGE ............................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. I have considered the application made by learned prosecuting Counsel Ms. Muriu and the response in opposition thereto by learned defence counsel Mr. Kimwere. The application is grounded on Section 33 and 77 of the Evidence Act. Section 33 thereof basically allows for production on evidence of statements whether oral, written or electronically recorded by persons who are not their makers if their makers are either dead or cannot be found or have become incapable of giving evidence. The provision also allows for production of such statements as evidence if their makers cannot be procured to attend the court to testify or their attendance cannot be procured without delay or exercise which in the circumstances of the court appears to be unreasonable. 2. In this case, the prosecution has claimed, and this has not been disputed by the defence that the government pathologist who prepared and signed the post mortem report the prosecution intends to rely on in this case to establish the deceased’s death has left Thika Level 5 Hospital and he cannot be procured to testify in this case to produce the post mortem report since his whereabouts are unknown. Given the age of this case which has been pending since the year 2015, adjourning the case for a further indefinite period to await production of a report made by an expert in the course of his professional duty when there is no guarantee of availability of the maker of the report or any other expert ….may have been moving with him is in my view unreasonable. 3. Mr. Kimwere’s argument that the investigating cannot or is not qualified to produce the report on behalf of the pathologist since he cannot defend the report in my view be sustained and since the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19591/eng@2025-04-29 1
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Investigating Officer or any other person producing the report on behalf of the pathologist would only be required to produce it as evidence for court’s consideration and not to defend its contents. 4. Given that the authenticity of reports made by experts including medical practitioners is presumed by Section 77 of the Evidence Act, I find that the prosecution has hand sufficient basis for the production of the post mortem report on behalf of its maker. The application is therefore allowed as prayed. DATED, SIGNED AND DELIVERED AT MURANGA THIS 29TH APRIL 2025. HON. C. W. GITHUA JUDGE In the presence of: Accused, Present Ms Muriu for the Republic Mr. Kimwere for the accused Ms Susan Waiganjo, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19591/eng@2025-04-29 2
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