Republic v Omar (Criminal Case E014 of 2021) [2026] KEHC 11354 (KLR) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11354 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MALINDI CRIMINAL CASE E014 OF 2021 M THANDE, J JULY 21, 2026 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND MUDHAFAR OMAR ........................................................................... RESPONDENT RULING 1. The issue before the Court for determination is the Application by the prosecution that PW2 No. 61707 Sgt. Peter Ndegwa be allowed to produce a witness statement by Fatiha Hashim Mohamed made on 12.5.21 as well as her P3 form dated 29.6.21. PW2 stated that Fatiha died before she testified. 2. The Prosecution stated that the 2 documents are crucial as they speak to circumstances in which the deceased and Fatiha were attacked resulting in the demise of the deceased. Further, that the statement and the P3 form were respectively recorded and obtained by PW2 in the ordinary course of duty as the investigating officer. 3. The Application is opposed by the defence counsel who contends that no evidence has been produced to show that Fatiha is dead. Further, that the P3 form was not supplied to the defence and production of the same would violate Article 50 of the Constitution. 4. The reason given by the prosecution that PW2 be allowed to produce Fatiha’s statement and P3 form is that she is now deceased. 5. It is trite that he who alleges must prove. The Evidence Act is very clear in this regard. Section 107 stipulates: 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11354/eng@2026-07-21 1
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2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 6. For the Court to allow the production of these documents, it must first be proved that Fatiha is indeed dead. The prosecution has not demonstrated with evidence that Fatiha is dead. The prosecution has thus failed to discharge the burden of proof placed upon it by law. 7. Even if there was any evidence of her death, and there is none, such evidence has not been supplied to the defence. Similarly, the P3 form has not been supplied to the defence. 8. To allow the production of the P3 form without if first being supplied to the defence will occasion prejudice to the accused. It will further violate the provisions of Article 50(2) of the Constitution which guarantees to the accused, the right to a fair trial. This right includes the right to have adequate time and facilities to prepare a defence as well as to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. 9. In the premises, the Application by the prosecution is declined. DATED AND DELIVERED IN MALINDI THIS 21ST DAY OF JULY 2026 M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11354/eng@2026-07-21 2
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