Republic v Kiura (Criminal Case E023 of 2021) [2023] KEHC 19850 (KLR) (5 July 2023) (Ruling)
Neutral citation:
[2023] KEHC 19850 (KLR)
Republic of Kenya
Criminal Case E023 of 2021
LM Njuguna, J
July 5, 2023
Between
Republic
Prosecution
and
Victor Muriuki Muriungi Kiura
Accused
Ruling
1.The accused person herein was charged with the offence of murder contraryto section 203 as read with section 204 of the Penal Code. The particulars of the offence being that on June 9, 2021at Mutira area, Makengi Location, in Embu West sub county, within Embu county murdered Justin Muchangi Ireri. Upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered.
2.This court was invited by Mr Guantai, counsel for the accused to find that PW9, Erick Bundi was not an expert as provided for under Mental Health Act and for purposes of the Evidence Act as the witness is not a doctor.
3.The learned prosecution counsel, Ms Mbevi opposed the application citing reasons that the witness was a clinical officer who majored in psychiatry and further held a diploma in Mental Health. It was her contention that section 3 of the Mental Health Act No 27 of 2022 defines a Mental Health Practitioner to include a qualified and duly registered psychiatrist under the Medical Practitioners and Dentist Act and the Clinical Officers Training Registration and Licensing Act.
4.Ms Mbevi therefore urged this court to find that the said witness was qualified to testify as a psychiatrist. Reliance was placed on the case of Raphael Kavoi Kiilu v The Republic 2010 eKLR criminal appeal number 198 of 2008 where the court held that a clinical officer is a qualified medical practitioner who can render medical services and give medical evidence under section 77 of the Evidence Act thus therefore, the witness was qualified to testify.
5.I have considered the brief oral submissions by the parties herein. It is trite that this being a criminal matter, it is incumbent upon the prosecution to prove its case beyond any reasonable doubt and therefore, it should be given a chance to do so.
6.The court has looked at the Clinical officer Act (Training, Registration and licensing Act cap 260 Laws of Kenya and the definition of a clinical officer is given as follows:-
7.The Act also provides that such an officer may engage in private practice in the practice of medicine, dentistry or health work for a fee.
8.Similarly, the courtin the case of Kyalo Kiswii v Republic [2015] eKLR when addressing the issue of competence of clinical officer had this to say:
9.From the above, it therefore follows that a clinical officer is a competent witness who can give evidence and further produce a medical record. [Also See Joseph Katua Kiatu v Republic [2015] eKLR].
10.It therefore follows that PW9 was not only a competent witness but also one who could produce a medical record as was the case herein.
11.In the circumstances herein, I find that the objection has no merit and the same is hereby dismissed.
12.It is so ordered.
Delivered, dated and signed at Embu this 5th day of July, 2023.L. NJUGUNAJUDGE………………………………………..............for the Accused………………………………………..……………for the StateRULING HCCR E023 OF 2021 Page 2