- The accused/applicant is facing a charge of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the offence are that on 24th March 2023 at Mwana wa Giti area in Gatondo village, Itabua location In Embu West sub-county, within Embu County, the accused person murdered Matilda Kathambi Karimi. He pleaded ‘not guilty’ and the plea was entered accordingly. The prosecution called witnesses in support of its case and among them was PW9, C.I. Jeremiah Ongaga, the officer in-charge of investigations, DCI Headquarters, Eastern.
- This witness testified that on 28th March 2023, he received a phone call from DCI Embu requesting him to assist them record a confession from the accused herein, who was being detained at Itabua Police Station. That the accused was taken to his office at Mugoya on 30th March 2023 for recording of the confession and he informed the accused of his rights to have an advocate or a third party of his choice present at the confession. That the accused elected his uncle Francis Peter Gitonga. He stated that he informed the accused of the requirements and he confirmed that he wished to confess. That the accused preferred to proceed using the English Language in making the confession. That he asked the accused if he had been tortured or had been subjected to any form of degrading treatment, intimidation or threat while in the police cells and he answered in the negative.
- He informed the accused of his right to a break at any point as necessary during the confession. The accused said that he did not have any medical condition and that he had been given a chance to communicate with his relatives before the confession. That he introduced himself to the accused and the confession was recorded in the presence of Francis Peter Gitonga. That throughout the confession, the accused was comfortable and the process began at 10:25 a.m and ended at 12:08 p.m without any breaks in between. That both the accused and himself signed the statement once it had been recorded.
- The respondent sought to produce the confessionary statement as evidence but the accused person’s counsel objected to its production. He objected to production of the confession stating that the confession was written by the accused himself but the advocate was not supplied with the handwritten statement but only the typed one which is not signed. The accused person’ advocate stated that he had not been supplied with any interpretation or certificate of interpretation of the handwritten statement and that he was unable to examine the witness on the veracity of the statement.
- That he could not verify the truthfulness of Francis Peter Gitonga and his election as the person present with the accused during recording of the statement. He argued that the statement does not have a seal or reference number as required and that it does not conform with Rule 6(4) of the Evidence (Out of Court Confession) Rules. He prayed that the court should not admit the statement as evidence and that the prosecution should be ordered to serve upon him the original statement to enable him cross-examine the witness.
- In rebuttal, the prosecution argued that it sought to produce the statement which is the primary evidence and not the typed confessionary statement that was supplied at pre-trial as part of the committal bundle. It argued that Rule 7 of the Evidence (Out of Court Confession) Rules allows for the recording of a confession in writing. That the confessionary statement it wishes to produce complies with confession rules, it is handwritten and is accompanied by a certification by the recording officer confirming that the statement was obtained from the accused person without force, threat or intimidation. That PW9 confirmed that the requirements for confession taking were complied with. The prosecution counsel intimated that the prosecution did not object to supplying the original statement to defense counsel to enable him to cross-examine the witness on veracity of the signature on the statement.
- On the issue of the elected third party, Francis Peter Gitonga, the prosecution counsel stated that he is a witness in the case and that his truthfulness may be ascertained through a trial within a trial if the court is pleased to so direct. That whether or not failure to produce a certificate of translation for the part of the evidence recorded in Ki-Meru language affects the veracity of the statement, the accused person’s counsel responded to the prosecution’s arguments noting that since it had conceded that it will provide him with the original statement, it is important that he be allowed to go through the document while noting that the words leading to the altercation between the accused and the deceased were said in Ki-Meru language. He urged to be granted time to prepare for cross-examination and take further instructions from his client.
- The issue for determination is whether the objection has merit.
- One of the issues raised by the accused person through his counsel, has already been resolved by the prosecution’s concession to provide the original statement to the accused person’s advocate. The accused person’s counsel also prayed that the statement should not be produced as it is, since it lacks the relevant signatures and that the certificate of translation is not provided. Section 25 of the Evidence Act defines a confession thus:
“A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.”
- The Evidence Act was amended by Act No. 5 of 2003 and Act No. 7 of 2007 by inserting into the Act Section 25A which states:
“(1) 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.
(2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.”
- With reference to these provisions, the statement of confession as recorded by PW9 meets all the requirements in the law. It was also his testimony that the statement was recorded in the English Language but the applicant contends that some of the key words in the confession are in the Ki-Meru language, hence the need for a certificate of translation. On the same note, he sought for a chance to examine the credibility of the third-party present during the confession. Rules 4 and 5 of the Evidence (Out of Court Confession) Rules provide for the rights of the accused person who wishes to confess and the procedure to be followed at such confession.
- From the issues raised by the accused person’s counsel in the objection, it is evident that he is challenging the truthfulness of the third-party elected by the accused person at the time of recording the statement. It is prudent for the original statement to be provided to the accused person to enable him adequately prepare.
- In view of the foregoing, the objection partially succeeds and the following orders are made:
- The prosecution to provide the original statement to the accused person within three (3) days from the date of this ruling.
- The same to be accompanied by the relevant certificate of translation for the parts that are in Ki-meru language.
- Any other issues to be canvassed during trial within trial, if that will become necessary.
- It is so ordered.
Delivered, dated and signed at Embu this 28th day of August, 2024.