THOMAS PATRICK GILBERT CHOLMONDELEY V. REPUBLIC

JUDGMENT OF THE COURT

The question that we shall attempt to answer in this appeal was posed by Mbogholi-Msagha and Kuloba, JJ way back in 2003 in the case of GEORGE NGODHE JUMA and TWO OTHERS v. THE ATTORNEY GENERAL, Miscellaneous Criminal Application No. 345 of 2001 (unreported). There, the High Court was asked to rule that the right to a fair trial with regard to criminal matters, guaranteed in section 77 of the Kenya Constitution which is the supreme law of the country, of necessity, involved the duty on the part of the prosecution to supply an accused person with all the relevant material in its possession, and to do so in advance of the beginning of the trial so that the party to be tried is made aware of the case to be advanced against him and to accordingly prepare his answer to that case. The two learned Judges had no difficulty at all in giving a positive answer to the question posed before them, though of course they made certain exceptions and circumstances in which the duty…