1.The Accused is charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 2nd day of July, 2021, at Kagumo Market, in Kirinyaga Central Sub - County he murdered Mark Karimi Mureithi. The accused was arraigned in court on 29th July, 2021, and pleaded not guilty.
2.On 27th June, 2022, the accused filed a motion seeking that the prosecution do avail a copy of the Investigation Diary before commencement of trial. The reasons are that the accused needs the Diary to enable him to adequately prepare his defence; that it contains entries in the police occurrence book such as the report of the offence, recovery of exhibits. Retrieval of the body, arrest of the accused, and so
3.The prosecution objected to the said application, and the court directed the parties to file skeletal submissions thereon. The parties complied
4.The applicant argues that his rights under article 50(2) of the Constitution are sacrosanct and includes under sub-Article 2(j) and (k), the rights:(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;(k)to adduce and challenge evidence”
5.The applicant further argues that it is not enough for the state to say they have provided all the evidence they will rely on, as if the accused feels it is necessary to have the Investigation Diary, then it should be availed. He relies on the decision of Lesiit J (as she then was) in Emilio Gitonga Mutegi & 3 Ors v Republic  eKLR where it was stated:
6.The applicant also relies on Republic v Ward (1993) 2 ALL ER 557 where the English Court of Appeal held:
7.The applicant submits that the duty of disclosure extends to both materials intended to be used for the prosecution as well as any other relevant material gathered in the course of investigations.
8.I note that in Emilio Gitonga’s case, one of the applicants’ prayers was that the trial court had violated their constitutional rights by refusing to issue them with the Investigation Diary claiming it contained prosecution secrets. The High Court, Lesiit J (as she then was) ultimately dismissed the application after holding that the prosecution must avail all material which it seeks to rely upon and finding that the trial court had made no ruling on that point.
9.The applicant also relies on the cases of James Mwangi & Ors v Republic  eKLR where it was held that an investigation report under the Anti-Corruption and Economic Crimes Act is a statutory internal administrative report which the EACC is mandated to avail to the DPP, but that there is no duty of disclosing it to the defence.
10.The prosecution submits that they will not be relying on the Police Investigation Diary, and had already furnished all the relevant material it intends to be relying on in court. they argue that the Constitution places a limitation on the material to be availed to an accused as being that which the prosecution intends to rely on.
11.The applicant also annexed the case of James Maruga Mwangi v R [2016} eKLR which authority I am not sure is relevant, as there is nothing in it kernel to the demand for an investigation diary. There, the issue highlighted was one concerning how the information in the investigation diary contradicted the evidence tendered in cross examination. It appears that in that case the investigation diary had been produced by the prosecution.
12.On their part, the prosecution has cited the following authorities:
- R V Josephat Koech Sirma & 5 Others  where AchodeJ (as she then was) said:
- R v Francis Muniu Kariuki  eKLR where Ngugi J (as he then was) held:
13.In its submissions the state insists that it has:
14.I have carefully considered the parties’ submissions and the material availed before me. the only issue before me is whether the applicant/defence is entitled in this case to be availed the Investigation Diary as demanded by them.
15.Article 50(2)(j) which underpins the applicant’s claim provides as follows:2.Every accused person has the right to a fair trial, which includes the right:a…….….j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
16.There is no doubt that a defendant is entitled in advance to evidence which the prosecution will rely upon. The obvious reason is that, being presumed innocent, he has a right to be able to adequately defend himself which includes and incorporates the rights under Article 50:b.to be informed of the charge, with sufficient detail to answer it;c.to have adequate time and facilities to prepare a defence………..j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;”
17.The first question that naturally arises is what is “evidence” which is referred to in Article 50 (2) (j) to which the defendant is entitled? In James Mawngi & Ors  supra this question was dealt with by Mumbi Ngugi J (as she then was) as follows whilst finding that an investigations report is not ‘evidence:22…. The term ‘evidence’ is defined in the Cambridge English Dictionary as ‘one or more reasons for believing that something is or is not true.’ In Black’s Law Dictionary, 10th edition ‘evidence’ is defined as something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact.…..24.In my view, the prosecution is correct in its assertion, and the trial court was correct in reaching the finding, that the investigations report is not one of the documents required under Article 50(2)(j) and (k). It is not ‘evidence’ on the basis of which the trial court could make a finding on the guilt or otherwise of an accused person.”
18.The Constitution 2010 is clear that evidence that the prosecution intends to rely upon is what must be availed to the defence. No more. That is to say, the testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact. This must be made available to the defence.
19.I think the courts are agreed on this point which is made in numerous cases. Mativo J.(as he then was) in Joseph Ndungu Kagiri Vs Republic  eKLR held thus:
21.Similarly, the court has declined to order production of material that was outside the scope of Article 50(2)(j), for example, in Republic v John Njoroge Chege  eKLR. There, the accused had sought to be supplied with email correspondence between the office of the DPP and the officer investigating an offence in which the DPP instructed the officer to charge the accused with an offence. In revising and setting aside an order of the trial court that the email be supplied to the accused, Ong’udi J observed that:
22.The principle to be drawn here is that prosecution cannot rely on material which it has not previously given to the defence, and if the defence requests any such material that will be relied upon, it must be availed.
23.I note that the applicant relied on the English case of Rv Ward. That case sets out the common law duty for the prosecution to avail any material in its possession, that is relevant whether or not it strengthens or weakens the prosecution case or assisted the defence case. I do not see in our Constitution, any similar principle. The constitution explicitly requires the production to the defence of all evidence the prosecution intends to rely on.
24.Ultimately, I agree with the prosecution that any evidence which they will not be relying upon, and therefore against which the defendant need not defend himself, need not be availed to the defence.
25.In so concluding, I note that it will be for the defence to be watchful and raise the alarm should the prosecution seek to rely on any evidence which has not already been disclosed to them. This is the attitude of Ngugi,J (as he then was ) in Republic v Francis Muniu Kariuki  eKLR supra when he stated:
26.Accordingly, I decline the applicant’s request and dismiss the application.