Republic v Wambua & 3 others (Criminal Case E004 of 2023) [2026] KEHC 4250 (KLR) (20 February 2026) (Ruling) Neutral citation: [2026] KEHC 4250 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL CASE E004 OF 2023 TM MATHEKA, J FEBRUARY 20, 2026 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND JAMES MWANZIA WAMBUA .............................................................. 1ST ACCUSED TITUS MAWOO KAVOLO ................................................................... 2ND ACCUSED JOHN KAVATA WAMBUA ................................................................... 3RD ACCUSED BERNARD MUSOMBA MASYOKO ................................................... 4TH ACCUSED RULING 1. The accused persons face a joint charge of Murder contrary to s. 203 as read with s. 204 of the Penal Code Cap 63 laws of Kenya 2. They each pleaded not guilty to the charge and the trial proceeded on 24/4/2024. The accused are represented by Mr. Kioko Advocate. 3. On 3/4/2025 during the hearing of the testimony of PW8 – no. XXX PC Robert Shimoli – it turned out that the defence had not been supplied with a document – referred to as a “requisition” and the confession of one James Mwanzia Wambua – the 1 st accused. Defence counsel opposed the prosecutions attempt to serve them with the said document submitting that it was an ambush upon the defence and in violation of the accused’s right to fair trial. 4. I directed that counsel address the court on the issue and each of them to file submissions in support of their positions – with one authority each. 5. Parties were given time to file submissions- and it is only on 9/10/2025 that parties said they were ready with the submissions. The court directed those copies be placed on the court file. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4250/eng@2026-02-20 1
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6. Today as I write this Ruling (13/2/2026) I only have the submissions by the prosecution. I have also checked the record – on CTS and I have not seen any from defence. 7. I have carefully considered the application by the prosecution and the submissions. The only issue for determination is whether the prosecution should be allowed to supply the documents to the defence at this stage of the trial – and whether doing so would violate the accused’s right to fair trial. Let us begin from the beginning 8. The prosecution is required by the Constitution – Article 50(2) (j) to disclose to the accused person, in advance, the evidence they wish to rely on. This disclosure is at the core of the right to fair trial coupled with the right to have adequate time and facilities to prepare his/her defence as per article 50(2) (c) of the Constitution. 9. We have jurisprudence establishing that the duty to disclose is not a one off event – but a continuous duty. This was the position taken by the Court of Appeal in Thomas Patrick Cholmondeley v R [2008] eKLR where the court held:there is a duty on the part of the prosecuting authorities to disclose to an accused person the evidence they intend to bring before the court in support of their charge. That duty also includes disclosing to accused person evidence which the prosecution has in their possession but which they do not intend to us during the trial itself, so that if any new information is obtained during the trial it must be disclosed…” 10. The prosecution also cited Dennis Edmund Apaa & 2 others v Anticorruption Commission & Another [2012] eKLR where the High Court stated that the duty of the court is to ensure a fair trial for the accused person and that this right of disclosure is protected” by ensuring that the accused is informed of the evidence in advance and has access to it. 11. Clearly the prosecutions duty is to disclose – the Constitutional Provisions appear to have in mind that investigations are always ongoing and the duty of the prosecution is to ensure whatever evidence they come across, they disclose and give it to the accused before they can use it. The role of the court is to facilitate the fairness of this process to ensure that the accused person is not prejudiced. 12. In the circumstances I find that the application by the prosecution is in order, and the objection by defence is overruled. 13. The prosecution is directed hereby to serve the defence with the said evidence immediately. 14. The defence will have 30 days upon service to “prepare” their defence with respect to the said documents. Orders accordingly DATED, SIGNED AND DELIVERED THIS 20TH FEBRUARY, 2026 HON. MUMBUA T. MATHEKA JUDGE Court Assistant – Daniel Prosecutor – Musyoki Accused - Present Counsel for the Accused – Mr. Judah Kioko https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4250/eng@2026-02-20 2
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