Dadius Mokaya Chetu v Republic [2018] KEHC 4919 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL APPEAL NO. 38 OF 2018

DADIUS MOKAYA CHETU............................APPELLANT

VERSUS

REPUBLIC.....................................................RESPONDENT

(Appeal from the original conviction and sentence of Hon. S.K Onjoro – SRM

dated 8th June, 2018 at the Chief Magistrate’s Court at Kisii

in Criminal Case No. 2025 of 2016)

JUDGMENT

1.  The appellant, DADIUS MOKAYA CHETU, was charged and convicted of the offence of possession of papers for forgery contrary to section 367(a) of the Penal Code (Chapter 63 of the Laws of Kenya).  The particulars were that on 29th June 2016 at Mbanda Sub-location, Marani Sub-County, without lawful authority or excuse the appellant knowingly had in his possession 178 papers intended to resemble and pass as a special paper as is provided and used in making currency notes.

2.  Before the trial court, the prosecution called three witnesses.  PC Joshua Mulunda (PW 1) and APC Evans Omambia (PW 2) both testified that on 29th June 2016, while they were on patrol, they received a tip off from members of the public that the appellant was dealing with paper for making forged money.  They went to the house conducted a search and found assorted chemicals and some bundles of paper which appeared to make fake currency notes.

3.  PC Gilbert Koech (PW 3), the investigating officer, who received 178 paper material resembling Kenya currency forwarded  20 samples thereof to the Forensic Document Examiner.  He received and produced the report dated 5th August 2016 which stated that in the opinion of CI Daniel Gutu the Forensic Document Examiner, the paper was intended to make counterfeit notes.  It is the evidence of PW 3 and the report that was used to support the conviction.

4.  Mr. Otieno, counsel for the prosecution correctly conceded the appeal as the document examiner report was incorrectly admitted without calling the maker.

5.  The manner of producing reports by Government analysts without calling the makers thereof is provided for under section 77 of the Evidence Act (Chapter 80 of the Laws of Kenya) which states;

77(1) In criminal proceedings any document purporting to be report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.

(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.

(3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject thereof.

6.  In this case PW 3 did not testify that he knew the analyst or his qualifications and that he was familiar with the handwriting and signature of Chief Inspector Gutu in order to meet the test of authenticity prescribed by section 77 aforesaid.  The report therefore was improperly admitted and could not be relied upon to support the conviction unless a proper basis was laid.

7.  In the circumstances, the conviction cannot be sustained.  The appeal is allowed, the conviction and sentence quashed.  The appellant is set free unless otherwise lawfully held.

Dated and delivered at Kisii this 2nd day of August 2018.

D.S MAJANJA

JUDGE

Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.

Appellant in person.