[1] The accused person is undergoing trial for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the 17 th December 2022 along ICIPE-Mbita Road in Mbita Township in Suba North within the County of Homa Bay, he murdered Don William Oluande . The accused denied those allegations and the Prosecution has, thus far, called two witness, namely, Jane Atieno Onyango (PW1) and John Odhiambo Onyango (PW3). The third witness, CI Julius Cheruiyot (PW3) was stood down after the accused repudiated a confession he allegedly made before PW3. A trial within trial was accordingly ordered to determine whether the alleged confession was made voluntarily.
[2] In the trial within trial, the prosecution called three witnesses. CI Julius Cheruiyot (PW3 in the trial within trial) testified that he was in the DCIO’s office at Mbita on the 23 rd December 2022 when the accused person, Julius Otieno Ooko, was introduced to him. He stated that the accused told him he had some information to divulge, which he would do in the new year. PW3 further stated that on the 2 nd January 2023 at around 9.00 a.m., the accused returned to his office carrying a back-pack and told him he was ready to give the information he had earlier alluded to. The accused then disclosed that he was the one who murdered Don William Oluande on 17 th November 2022. The accused further confessed that he had caused grievous harm to another person whose name he supplied.
[3] It was further the testimony of PW3 that, on hearing what the accused had to say, he cautioned him and explained to him the nature of the information that he had given and guided him on the applicable procedure. PW3 further stated that he informed the accused that if indeed he wanted to make a confession, he needed to have an advocate present as well as a relative of his choice. PW3 further told the Court that the accused declined and said he did not want to involve a lawyer or relatives because he did not want people to know about the matter. Upon further discussion, he was able to convince the accused that it was in his best interest to comply with applicable procedure; and that the accused authorized him to get a lawyer for him.
[4] In the evidence of PW3, he contacted a colleague who recommended a lawyer by the name of Quinter Adoyo , who was offering pro bono services at Mbita Law Courts. He thereafter contacted Ms. Adoyo and she agreed to take up the matter and that Ms. Adoyo availed herself on 5 th January 2023. The accused was duly informed and he availed himself along with a friend by the name of Peter Oluoch , a member of staff at Mbita Sub-County Police Office.
[5] Thus, PW3 testified that on the 5 th January 2023 at his office, he took the confession of the accused in the presence of both Ms. Quinter Adoyo and Peter Oluoch ; and that this was after he informed him of his rights, ensured he was comfortable and cautioned him that he was not obliged to say anything. He further stated that the statement as recorded was read over to the accused and that the confirmed it to be a true record of what he had stated. He thereafter signed the statement. Thus, the evidence of PW3 was that the accused made the statement voluntarily without any coercion, force or promise of any kind.
[6] Ms. Quinter Adoyo , Advocate, testified in the trial within trial as PW2. She confirmed that she is an Advocate of the High Court of Kenya of 7 years standing; and that in the year 2023, she was the Chair of the Law Society of Kenya (LSK), Homa Bay County Chapter. She also confirmed that before the 5 th January 2023, she received a call from the DCIO, Mbita, in her capacity as the LSK Chair. She went to the DCIO’s office and got to learn from him that there was a suspect in custody who wanted to make a confession. They agreed to undertake the exercise on 5 th January 2023.
[7] Regarding the events of 5 th January 2023, PW2 testified that she went to the office of the DCIO where she found the DCIO. He thereafter called the suspect (the accused herein) and a man called Peter . She further stated that initially the suspect was hesitant to have an advocate present and that she reinforced his confidence by explaining to him the importance of having her in attendance. She explained that the first confession was recorded on 3 rd January 2023 for the offence of grievous harm; and that when they converged on the 5 th January 2023, the accused expressed happiness that she had availed herself on his behalf.
[8] PW2 further stated that, on the 5 th January 2023, the accused voluntarily made a confession in her presence and that he was not forced or coerced into making the statement. She added that the DCIO also cautioned him that he was not obliged to say anything; and that after recording the statement, it was read over to the accused, he confirmed it to be a true record and signed it voluntarily.
[9] Peter Oluoch Juma , PW1 in the trial within trial testified that he got to know the accused when he went to Mbita Police Station to collect his bicycle; and that they became friends thereafter. He further stated that in the course of their conversations the accused confided in him that he had committed murder. PW1 stated that he was in church on 5 th January 2023 when the DCIO called him to his office and told him that the accused, who was then in custody, wanted to make a confession and wanted him to be present as a witness. He added that there was an advocate in attendance whose name he could not recall.
[10] PW1 testified that the accused voluntarily made his statement in his presence confessing to having murdered Don. He added that the exercise took about two hours and that the Advocate also just listened as the accused made his statement. He further stated that the accused was not threatened or forced to make the confession; and that afterwards the accused signed the statement which they also signed as witnesses.
[11] On his part, the accused stated that on the 3 rd January 2023, he had a fight with a person known as Ooko Gogo whom he cut with a panga; and that out of fear, he presented himself at Mbita Police Station and reported the incident. He further stated that he led the police to the scene and found that the victim had been taken to hospital. He thereafter gave information to the police about the panga he had used and disposed of; and the panga was later recovered. He was charged with grievous harm; an offence he readily admitted and was convicted and sentenced to 25 years’ imprisonment.
[12] Hence, the contention of the accused was that the offence of grievous harm was the only offence he committed and it was the offence to which he confessed in the presence of PW1 and PW2. While he admitted to knowing PW1, he denied that he asked him to be present as a witness to his confession. He also denied that he knows Kiswahili well enough to be able to make a statement in that language as contended by PW2 and PW3. He also denied that he was given a break as alleged by PW2 and PW3.
[13] The parties were granted an opportunity to file written submissions in respect of the trial within trial and in their submissions the prosecution acknowledged that, under Section 25A of the Evidence Act confessions are generally inadmissible unless made before a judge, a magistrate or before a police officer (other than the Investigating Officer) being an officer not below the rank of inspector of police and a third party of the person's choice. The prosecution reiterated the evidence of their three (3) witnesses, including the evidence of their star witness in the trial within trial, Chief Inspector Julius Cheruiyot who recorded the confession. [14] The prosecution also supplied a summary of the defence case in the trial within trial. For determination they proposed the following two issues:
[a] Whether the confession meets the legal threshold under Section 25A of the Evidence Act; and
[b] Whether the confession was made voluntarily.
[15] The prosecution urged the Court to find that the confession was made before a Chief Inspector of Police who is a qualified officer under the law to record confessions; and that the accused was advised of his right to have an independent third party in attendance. It was therefore their submission that the accused voluntarily chose to have Peter Oluoch and Advocate Quinter Adoyo present; and that both testified in the trial within trial to that effect. The prosecution relied on Tuwamoi v Uganda [1967] EA 84 and Paul Mwangi Murunga v Republic [2008] eKLR in which the court held that the test of admissibility is whether the confession was made voluntarily.
[16] Reference was also made by the prosecution to the case of Republic v Elly Waga Omondi [2015] eKLR in which the court held that presence of an independent person during confession strengthens its credibility. Hence the respondent urged the Court to find that the accused person made the confession out of his own free will and that PW3 complied with the applicable law and rules in recording the same. Consequently, counsel urged the Court to admit the confession in evidence.
[17] On his part the accused, through his counsel, relied on Section 25A of the Evidence Act and the provisions of the Evidence (Out of Court Confessions) Rules, 2009 and urged the Court to carefully consider the evidence adduced in the trial within trial with a view of upholding his objection. He reiterated the evidence adduced in the trial within trial and submitted that the prosecution case was not convincing as to whether indeed he confessed to the offence of murder. He submitted that the prosecution evidence was specific to the events of 5 th January 2023 and contended that he could not have given two confessions on that day. He relied on Republic v Wafula [2025] eKLR.
[18] In the light of the foregoing, there is only one issue for determination in this ruling and it is whether the accused voluntarily made a confession properly so called before PW3 as alleged by the prosecution.
[19] Needless to mention that the protection against self-incrimination is one of the fundamental rights enshrined in the Constitution. Article 50(2) provides that:
Every accused person has the right to a fair trial, which includes the right—
…
(l ) to refuse to give self-incriminating evidence;
[20] Accordingly, Section 25A (1) of the Evidence Act defines what a confession is and delimits the circumstances of its admissibility. It states as follows:
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.
[21] In addition, The Evidence (Out of Court Confessions) Rules 2009 were formulated to enhance the constitutional protection afforded to accused persons and to ensure that confessions are entirely voluntary. In particular, Rule 4(1) of the Evidence (Out of Court Confessions) Rules, provides that:
(1) Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person—
(a) has stated his preferred language of communication;
(b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English;
(c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;
(d)is informed of his right to have legal representation of his own choice;
(e) is not deprived of food, water or sleep;
(f) has his duration, including date and time of arrest and detention in police custody, established and recorded;
(g) has his medical complaint, if any, adequately addressed;
(h) is availed appropriate communication facilities; and
(i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.
[22] The Court of Appeal underscored the point in Musili Tulo v Republic [2014] eKLR as follows:
Once the objection was raised, it was the duty of the trial court to make an order for a ‘trial within the trial’ and to deliver a ruling to determine such admissibility, even before the statements were marked for identification. The purpose is to determine the voluntariness of the statement intended to be tendered for the prosecution, because a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary. It is a matter of law and is for judge alone to decide upon hearing evidence - see Shah v. Republic 1984 [KLR] 674. Indeed it is an aspect of fair trial…”
[23] A careful consideration of the evidence adduced in the trial within trial shows that the accused presented himself at the police station at Mbita out of his own volition and informed PW3 that he had some information to disclose and that he would return to do so in the new year. Then when he returned on the 2 nd January 2023, the accused told him that he was ready to give the information he had earlier alluded to. The accused proceeded to disclose that he was the one who murdered Don William Oluande on 17 th November 2022. The accused further confessed that he had caused grievous harm to another person whose name he supplied.
[24] From the foregoing it is manifest that PW3 gave credible evidence as to circumstances in which the confession was made. His evidence was corroborated by both PW1 and PW2 to the effect that the accused was cautioned and advised to ensure that he had a lawyer and a family member present. As a legal practitioner and an independent witness to the recording of the confession, PW2 gave candid evidence that she was in attendance throughout the session of 5 th January 2023 that lasted about two hours and that the accused made his statement out of his own free will. She pointed out that a separate session had been held on 3 rd January 2023 in respect of the offence of grievous harm.
[25] Having given careful consideration to the evidence adduced in the trial within trial, I am satisfied that the accused voluntarily made a confession to PW3 in the presence of both PW1 and PW2. It is therefore my finding that the statement in question is admissible in evidence.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026
…
[2] In the trial within trial, the prosecution called three witnesses. CI Julius Cheruiyot (PW3 in the trial within trial) testified that he was in the DCIO’s office at Mbita on the 23 rd December 2022 when the accused person, Julius Otieno Ooko, was introduced to him. He stated that the accused told him he had some information to divulge, which he would do in the new year. PW3 further stated that on the 2 nd January 2023 at around 9.00 a.m., the accused returned to his office carrying a back-pack and told him he was ready to give the information he had earlier alluded to. The accused then disclosed that he was the one who murdered Don William Oluande on 17 th November 2022. The accused further confessed that he had caused grievous harm to another person whose name he supplied.
[3] It was further the testimony of PW3 that, on hearing what the accused had to say, he cautioned him and explained to him the nature of the information that he had given and guided him on the applicable procedure. PW3 further stated that he informed the accused that if indeed he wanted to make a confession, he needed to have an advocate present as well as a relative of his choice. PW3 further told the Court that the accused declined and said he did not want to involve a lawyer or relatives because he did not want people to know about the matter. Upon further discussion, he was able to convince the accused that it was in his best interest to comply with applicable procedure; and that the accused authorized him to get a lawyer for him.
[4] In the evidence of PW3, he contacted a colleague who recommended a lawyer by the name of Quinter Adoyo , who was offering pro bono services at Mbita Law Courts. He thereafter contacted Ms. Adoyo and she agreed to take up the matter and that Ms. Adoyo availed herself on 5 th January 2023. The accused was duly informed and he availed himself along with a friend by the name of Peter Oluoch , a member of staff at Mbita Sub-County Police Office.
[5] Thus, PW3 testified that on the 5 th January 2023 at his office, he took the confession of the accused in the presence of both Ms. Quinter Adoyo and Peter Oluoch ; and that this was after he informed him of his rights, ensured he was comfortable and cautioned him that he was not obliged to say anything. He further stated that the statement as recorded was read over to the accused and that the confirmed it to be a true record of what he had stated. He thereafter signed the statement. Thus, the evidence of PW3 was that the accused made the statement voluntarily without any coercion, force or promise of any kind.
[6] Ms. Quinter Adoyo , Advocate, testified in the trial within trial as PW2. She confirmed that she is an Advocate of the High Court of Kenya of 7 years standing; and that in the year 2023, she was the Chair of the Law Society of Kenya (LSK), Homa Bay County Chapter. She also confirmed that before the 5 th January 2023, she received a call from the DCIO, Mbita, in her capacity as the LSK Chair. She went to the DCIO’s office and got to learn from him that there was a suspect in custody who wanted to make a confession. They agreed to undertake the exercise on 5 th January 2023.
[7] Regarding the events of 5 th January 2023, PW2 testified that she went to the office of the DCIO where she found the DCIO. He thereafter called the suspect (the accused herein) and a man called Peter . She further stated that initially the suspect was hesitant to have an advocate present and that she reinforced his confidence by explaining to him the importance of having her in attendance. She explained that the first confession was recorded on 3 rd January 2023 for the offence of grievous harm; and that when they converged on the 5 th January 2023, the accused expressed happiness that she had availed herself on his behalf.
[8] PW2 further stated that, on the 5 th January 2023, the accused voluntarily made a confession in her presence and that he was not forced or coerced into making the statement. She added that the DCIO also cautioned him that he was not obliged to say anything; and that after recording the statement, it was read over to the accused, he confirmed it to be a true record and signed it voluntarily.
[9] Peter Oluoch Juma , PW1 in the trial within trial testified that he got to know the accused when he went to Mbita Police Station to collect his bicycle; and that they became friends thereafter. He further stated that in the course of their conversations the accused confided in him that he had committed murder. PW1 stated that he was in church on 5 th January 2023 when the DCIO called him to his office and told him that the accused, who was then in custody, wanted to make a confession and wanted him to be present as a witness. He added that there was an advocate in attendance whose name he could not recall.
[10] PW1 testified that the accused voluntarily made his statement in his presence confessing to having murdered Don. He added that the exercise took about two hours and that the Advocate also just listened as the accused made his statement. He further stated that the accused was not threatened or forced to make the confession; and that afterwards the accused signed the statement which they also signed as witnesses.
[11] On his part, the accused stated that on the 3 rd January 2023, he had a fight with a person known as Ooko Gogo whom he cut with a panga; and that out of fear, he presented himself at Mbita Police Station and reported the incident. He further stated that he led the police to the scene and found that the victim had been taken to hospital. He thereafter gave information to the police about the panga he had used and disposed of; and the panga was later recovered. He was charged with grievous harm; an offence he readily admitted and was convicted and sentenced to 25 years’ imprisonment.
[12] Hence, the contention of the accused was that the offence of grievous harm was the only offence he committed and it was the offence to which he confessed in the presence of PW1 and PW2. While he admitted to knowing PW1, he denied that he asked him to be present as a witness to his confession. He also denied that he knows Kiswahili well enough to be able to make a statement in that language as contended by PW2 and PW3. He also denied that he was given a break as alleged by PW2 and PW3.
[13] The parties were granted an opportunity to file written submissions in respect of the trial within trial and in their submissions the prosecution acknowledged that, under Section 25A of the Evidence Act confessions are generally inadmissible unless made before a judge, a magistrate or before a police officer (other than the Investigating Officer) being an officer not below the rank of inspector of police and a third party of the person's choice. The prosecution reiterated the evidence of their three (3) witnesses, including the evidence of their star witness in the trial within trial, Chief Inspector Julius Cheruiyot who recorded the confession. [14] The prosecution also supplied a summary of the defence case in the trial within trial. For determination they proposed the following two issues:
[a] Whether the confession meets the legal threshold under Section 25A of the Evidence Act; and
[b] Whether the confession was made voluntarily.
[15] The prosecution urged the Court to find that the confession was made before a Chief Inspector of Police who is a qualified officer under the law to record confessions; and that the accused was advised of his right to have an independent third party in attendance. It was therefore their submission that the accused voluntarily chose to have Peter Oluoch and Advocate Quinter Adoyo present; and that both testified in the trial within trial to that effect. The prosecution relied on Tuwamoi v Uganda [1967] EA 84 and Paul Mwangi Murunga v Republic [2008] eKLR in which the court held that the test of admissibility is whether the confession was made voluntarily.
[16] Reference was also made by the prosecution to the case of Republic v Elly Waga Omondi [2015] eKLR in which the court held that presence of an independent person during confession strengthens its credibility. Hence the respondent urged the Court to find that the accused person made the confession out of his own free will and that PW3 complied with the applicable law and rules in recording the same. Consequently, counsel urged the Court to admit the confession in evidence.
[17] On his part the accused, through his counsel, relied on Section 25A of the Evidence Act and the provisions of the Evidence (Out of Court Confessions) Rules, 2009 and urged the Court to carefully consider the evidence adduced in the trial within trial with a view of upholding his objection. He reiterated the evidence adduced in the trial within trial and submitted that the prosecution case was not convincing as to whether indeed he confessed to the offence of murder. He submitted that the prosecution evidence was specific to the events of 5 th January 2023 and contended that he could not have given two confessions on that day. He relied on Republic v Wafula [2025] eKLR.
[18] In the light of the foregoing, there is only one issue for determination in this ruling and it is whether the accused voluntarily made a confession properly so called before PW3 as alleged by the prosecution.
[19] Needless to mention that the protection against self-incrimination is one of the fundamental rights enshrined in the Constitution. Article 50(2) provides that:
Every accused person has the right to a fair trial, which includes the right—
…
(l ) to refuse to give self-incriminating evidence;
[20] Accordingly, Section 25A (1) of the Evidence Act defines what a confession is and delimits the circumstances of its admissibility. It states as follows:
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.
[21] In addition, The Evidence (Out of Court Confessions) Rules 2009 were formulated to enhance the constitutional protection afforded to accused persons and to ensure that confessions are entirely voluntary. In particular, Rule 4(1) of the Evidence (Out of Court Confessions) Rules, provides that:
(1) Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person—
(a) has stated his preferred language of communication;
(b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English;
(c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;
(d)is informed of his right to have legal representation of his own choice;
(e) is not deprived of food, water or sleep;
(f) has his duration, including date and time of arrest and detention in police custody, established and recorded;
(g) has his medical complaint, if any, adequately addressed;
(h) is availed appropriate communication facilities; and
(i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.
[22] The Court of Appeal underscored the point in Musili Tulo v Republic [2014] eKLR as follows:
Once the objection was raised, it was the duty of the trial court to make an order for a ‘trial within the trial’ and to deliver a ruling to determine such admissibility, even before the statements were marked for identification. The purpose is to determine the voluntariness of the statement intended to be tendered for the prosecution, because a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary. It is a matter of law and is for judge alone to decide upon hearing evidence - see Shah v. Republic 1984 [KLR] 674. Indeed it is an aspect of fair trial…”
[23] A careful consideration of the evidence adduced in the trial within trial shows that the accused presented himself at the police station at Mbita out of his own volition and informed PW3 that he had some information to disclose and that he would return to do so in the new year. Then when he returned on the 2 nd January 2023, the accused told him that he was ready to give the information he had earlier alluded to. The accused proceeded to disclose that he was the one who murdered Don William Oluande on 17 th November 2022. The accused further confessed that he had caused grievous harm to another person whose name he supplied.
[24] From the foregoing it is manifest that PW3 gave credible evidence as to circumstances in which the confession was made. His evidence was corroborated by both PW1 and PW2 to the effect that the accused was cautioned and advised to ensure that he had a lawyer and a family member present. As a legal practitioner and an independent witness to the recording of the confession, PW2 gave candid evidence that she was in attendance throughout the session of 5 th January 2023 that lasted about two hours and that the accused made his statement out of his own free will. She pointed out that a separate session had been held on 3 rd January 2023 in respect of the offence of grievous harm.
[25] Having given careful consideration to the evidence adduced in the trial within trial, I am satisfied that the accused voluntarily made a confession to PW3 in the presence of both PW1 and PW2. It is therefore my finding that the statement in question is admissible in evidence.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026
…