REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL CASE NO. 9 OF 2020
REPUBLIC................................................................................RESPONDENT
-VERSUS-
JOHN MUTHANGA KASYULA ………………..……………..1ST ACCUSED/APPLICANT
JOSHUA MUTUA KASYULA…………………………………..2ND ACCUSED/APPLICANT
MUNYASYA MWANZIA…………………………..…………….3RD ACCUSED/APPLICANT
PETER SALIM KISANDU………………………………………….4TH ACCUSED/APPLICANT
RULING
1. Joshua Mutua Kasyoka (“Accused Person”) is facing trial for the alleged murder of Charles Munyithya (“Deceased”). They were arraigned in court and the accused person pleaded not guilty and the case took off on 22.7.2021 before this court and six witnesses testified before PC Otieno Mbula No. 110751 was called as PW7.
2. On 18th March,2026, the prosecution sought to produce a statement recorded by a witness called James Ngui Ng’onga. The statement was marked as MFI-1.
3. Mr. Mbonzo ,counsel for prosecution told court that one James Ngui Ng’onga was their eye witness but is since deceased. He testified that he was found murdered and thrown within Thyaa River on 5th July 2023. He testified that upto date his murder is being investigated and his body is still at Mwingi Sub-County Hospital. He testified further that this was communicated through a wide signal dated 6th June,2023 and reported via OB No.09/06/06/2023
4. He informed court that the body was confirmed to be that of Ngui from the database and the finger prints. He informed court that James Ngui Ng’onga is a very important witness. He is not able to testify but he had recorded a statement and signed it. He stated that he applies to produce it as exhibit 2.
5. An objection was raised by Ms. Valarie acting for 1st -4th accused persons. She stated that it is not what is envisaged for under section 35 of the Evidence Act. She that stated they would need to cross examine. Ms.Valarie urged court to protect Article 50, Right to fair hearing. She stated further that they will not be able to test the credibility.
6. Ms. Mwatha also opposed the production of the statement and stated that the witness statement is not made on oath.
7. Mr. Wambua for 6th accused opposed the production of the statement and informed court that this is a trial by ambush. They were not made aware of the statement. He informed court that the statement is not a dying declaration. The investigating officer was not there when the statement was recorded. She urged court to expunge it from the record.
8. In response Mr. Mbonzo stated that he has attached a public document to confirm that the witness is dead. The witness had reported to the police about fear for his life. He informed court that it is also confirmed that the witness was murdered. He referred to section 33 of the Evidence Act that allows use of statements of a person who is dead. He stated further that it is not ambush as it was part of the documents supplied to the defence. He stated they are not producing anything contrary to what they have and it is true that that they will not be able to cross-examine and it has no probative value.
Determination
9. The issue is whether a witness statement is admissible where the witness cannot be produced for reason of death?
10. The objection herein hinges on right to fair hearing. Article 50 (2) (k) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to adduce and challenge evidence and Article 25 confirms fair trial as non derogable right.
11. Generally, hearsay evidence is inadmissible for the dangers related to its unreliability because it was not tested in the ordinary ways of adducing evidence. It is only in specific instances under Section 33 of the Evidence Act admissibility in evidence of statement by a deceased person or persons who cannot be found is permitted. According to Section 33 of the Evidence Act:
“Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases–
(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question...”
12. Does this case bring itself within the exceptions in section 33 of the Evidence Act? In this case, the statement that seeks to be produced is said to have been written by James Ngui Ng’onga relating to the death of Charles Munyithya .Certainly, the statement does not fit the exceptions under Section 33 for it neither relates to the cause of death of its maker, James Ngui Ng’onga nor to the circumstances of the transaction which resulted in his death.
13. Faced with a similar scenario, the Court of Appeal in the case of Dickson Mbeya Marende alias Dickie & another v Republic [2017] eKLR stated as follows:
“26. We do not think that Nyakairu’s statement was admissible under section 33 of the Evidence Act. Neither did the statement relate to the cause of death of its maker, Nyakairu, nor did it relate to the circumstances of the transaction which resulted in Nyakairu’s death as per section 33(a). Equally, it was not a dying declaration. It did not also purport to identify the killers of the deceased. We would therefore agree with the appellants’ counsel’s submissions that the trial court ought not to have admitted it under section 33(a) of the Evidence Act.”
14. The situation here is not covered by any of the sub-sections of section 33 of the Evidence Act. It is not, therefore, one of the permissible scenarios where hearsay evidence is admitted as evidence despite the dangers as to its unreliability due to lack of an opportunity to confront the maker of the statement.
15. The admissibility of statements which will not be subjected to cross-examination is per se prohibited as it violates Article 50(2)(k) of the Constitution.
16. Accordingly, I opine that the statement which the prosecution seeks to be admitted in evidence must be excluded. It is not admissible in evidence.
DATED AT KITUI THIS 6TH DAY OF MAY 2026
L GITARI
JUDGE
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL CASE NO. 9 OF 2020
REPUBLIC................................................................................RESPONDENT
-VERSUS-
JOHN MUTHANGA KASYULA ………………..……………..1ST ACCUSED/APPLICANT
JOSHUA MUTUA KASYULA…………………………………..2ND ACCUSED/APPLICANT
MUNYASYA MWANZIA…………………………..…………….3RD ACCUSED/APPLICANT
PETER SALIM KISANDU………………………………………….4TH ACCUSED/APPLICANT
RULING
1. Joshua Mutua Kasyoka (“Accused Person”) is facing trial for the alleged murder of Charles Munyithya (“Deceased”). They were arraigned in court and the accused person pleaded not guilty and the case took off on 22.7.2021 before this court and six witnesses testified before PC Otieno Mbula No. 110751 was called as PW7.
2. On 18th March,2026, the prosecution sought to produce a statement recorded by a witness called James Ngui Ng’onga. The statement was marked as MFI-1.
3. Mr. Mbonzo ,counsel for prosecution told court that one James Ngui Ng’onga was their eye witness but is since deceased. He testified that he was found murdered and thrown within Thyaa River on 5th July 2023. He testified that upto date his murder is being investigated and his body is still at Mwingi Sub-County Hospital. He testified further that this was communicated through a wide signal dated 6th June,2023 and reported via OB No.09/06/06/2023
4. He informed court that the body was confirmed to be that of Ngui from the database and the finger prints. He informed court that James Ngui Ng’onga is a very important witness. He is not able to testify but he had recorded a statement and signed it. He stated that he applies to produce it as exhibit 2.
5. An objection was raised by Ms. Valarie acting for 1st -4th accused persons. She stated that it is not what is envisaged for under section 35 of the Evidence Act. She that stated they would need to cross examine. Ms.Valarie urged court to protect Article 50, Right to fair hearing. She stated further that they will not be able to test the credibility.
6. Ms. Mwatha also opposed the production of the statement and stated that the witness statement is not made on oath.
7. Mr. Wambua for 6th accused opposed the production of the statement and informed court that this is a trial by ambush. They were not made aware of the statement. He informed court that the statement is not a dying declaration. The investigating officer was not there when the statement was recorded. She urged court to expunge it from the record.
8. In response Mr. Mbonzo stated that he has attached a public document to confirm that the witness is dead. The witness had reported to the police about fear for his life. He informed court that it is also confirmed that the witness was murdered. He referred to section 33 of the Evidence Act that allows use of statements of a person who is dead. He stated further that it is not ambush as it was part of the documents supplied to the defence. He stated they are not producing anything contrary to what they have and it is true that that they will not be able to cross-examine and it has no probative value.
Determination
9. The issue is whether a witness statement is admissible where the witness cannot be produced for reason of death?
10. The objection herein hinges on right to fair hearing. Article 50 (2) (k) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to adduce and challenge evidence and Article 25 confirms fair trial as non derogable right.
11. Generally, hearsay evidence is inadmissible for the dangers related to its unreliability because it was not tested in the ordinary ways of adducing evidence. It is only in specific instances under Section 33 of the Evidence Act admissibility in evidence of statement by a deceased person or persons who cannot be found is permitted. According to Section 33 of the Evidence Act:
“Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases–
(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question...”
12. Does this case bring itself within the exceptions in section 33 of the Evidence Act? In this case, the statement that seeks to be produced is said to have been written by James Ngui Ng’onga relating to the death of Charles Munyithya .Certainly, the statement does not fit the exceptions under Section 33 for it neither relates to the cause of death of its maker, James Ngui Ng’onga nor to the circumstances of the transaction which resulted in his death.
13. Faced with a similar scenario, the Court of Appeal in the case of Dickson Mbeya Marende alias Dickie & another v Republic [2017] eKLR stated as follows:
“26. We do not think that Nyakairu’s statement was admissible under section 33 of the Evidence Act. Neither did the statement relate to the cause of death of its maker, Nyakairu, nor did it relate to the circumstances of the transaction which resulted in Nyakairu’s death as per section 33(a). Equally, it was not a dying declaration. It did not also purport to identify the killers of the deceased. We would therefore agree with the appellants’ counsel’s submissions that the trial court ought not to have admitted it under section 33(a) of the Evidence Act.”
14. The situation here is not covered by any of the sub-sections of section 33 of the Evidence Act. It is not, therefore, one of the permissible scenarios where hearsay evidence is admitted as evidence despite the dangers as to its unreliability due to lack of an opportunity to confront the maker of the statement.
15. The admissibility of statements which will not be subjected to cross-examination is per se prohibited as it violates Article 50(2)(k) of the Constitution.
16. Accordingly, I opine that the statement which the prosecution seeks to be admitted in evidence must be excluded. It is not admissible in evidence.
DATED AT KITUI THIS 6TH DAY OF MAY 2026
L GITARI
JUDGE