[2022] KEHC 16135 (KLR)
The court found that the witness had answered all questions put to him by the prosecution after taking the oath, had not refused to produce any required documents, and had not refused to sign any disposition. Therefore, the requirements for declaring a witness refractory under section 152(1) of the Criminal...
Source-derived case information.
- Citation
- [2022] KEHC 16135 (KLR)
- Parties
- Applicant: Director of Public Prosecutions; Respondent: Washington Ochieng Onyango
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2020
- Procedural Posture
- Criminal Case / Ruling on Prosecution's Application to Declare Witness Refractory
- Outcome
- Application dismissed.
- Judges
- DO Ogembo
- Legal Topics
- Refractory Witnesses, Witness Testimony, Criminal Procedure Code Section 152
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions
Applicant
Washington Ochieng Onyango
Respondent
Procedural Posture
Criminal Case / Ruling on Prosecution's Application to Declare Witness Refractory
Legal Issues
- 1 Whether the prosecution's witness (PW10) should be declared a refractory witness under section 152 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the witness had answered all questions put to him by the prosecution after taking the oath, had not refused to produce any required documents, and had not refused to sign any disposition. Therefore, the requirements for declaring a witness refractory under section 152(1) of the Criminal Procedure Code were not met. The prosecution's application was found to lack merit and was dismissed accordingly.
Court Disposition
Application dismissed.
Orders
- The prosecution's application to declare the witness refractory is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Director of Public Prosecutions v Onyango (Criminal Case 9 of 2020) [2022] KEHC 16135 (KLR) (Crim) (7 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16135 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Case 9 of 2020
DO Ogembo, J
December 7, 2022
Between
Director of Public Prosecutions
Republic
and
Washington Ochieng Onyango
Accused
Ruling
1. The prosecution has applied under section 152 of the Criminal Procedure Codeto have this witness (PW10) be declared a refractory witness. The application is grounded on the submissions that the witness has disowned the statements he made with the police, particularly, his further statement. The prosecution has consequently urged that the court do order that this witness be placed in custody for a period of 8 days.
2. The counsel for the accused has vehemently opposed this application. This court, however, got the impression that the submissions made by counsel were more relevant to an application to have the witness be declared hostile, and not the application before the court. I shall not dwell on the same.
3. Section 152(1) of the Criminal Procedure Code, under which this application has been brought provides;-“Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence.a.Refuses to be sworn, orb.Having been sworn, refuses to answer any question put to him, orc.Refuses or neglects to produce any document or thing which he is required to produce, ord.Refuses to sign his disposition, Without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for a period not exceeding 8 days, and may in the meantime commit that person to prison for the same period, unless he sooner consents to do what is required of him.”
4. In our instant case, the witness has answered all the questions put across to him by the prosecution after taking the oath. He has not refused to produce any documents required of him. Neither has he refused to sign any of his disposition.
5. In the circumstances, I do not find any merit in the prosecution application to have this witness be declared a refractory witness. I accordingly dismiss this application of the prosecution. Orders accordingly.
D. O. OGEMBOJUDGE7THDECEMBER 2022.