[2022] KEHC 11660 (KLR)
The court found that the prosecution had proved beyond reasonable doubt that the confession statement (P.MFI 2) was made voluntarily by the accused and that all procedural requirements under the Evidence (out of court confessions) Rules 2009 were complied with. The testimony of Chief IP Jebason Okongo (PW 5), the...
Source-derived case information.
- Citation
- [2022] KEHC 11660 (KLR)
- Parties
- Applicant: Republic; Defendant: Samwel Ombima Buruk
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E016 of 2021
- Procedural Posture
- Criminal Case / Trial Within a Trial Ruling on Admissibility of Confession
- Outcome
- confession ruled voluntary and admissible
- Judges
- JR Karanja
- Legal Topics
- Confession Admissibility, Evidence Act Application, Voluntariness of Statements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samwel Ombima Buruk
Defendant
Procedural Posture
Criminal Case / Trial Within a Trial Ruling on Admissibility of Confession
Legal Issues
- 1 Whether the confession statement by the accused was made voluntarily and is therefore admissible in evidence.
- 2 Whether the prosecution complied with the Evidence (out of court confessions) Rules 2009 in recording the confession.
Ratio Decidendi
The court found that the prosecution had proved beyond reasonable doubt that the confession statement (P.MFI 2) was made voluntarily by the accused and that all procedural requirements under the Evidence (out of court confessions) Rules 2009 were complied with. The testimony of Chief IP Jebason Okongo (PW 5), the recording officer, was accepted as credible and supported by documentary evidence, including the certificate of confession signed by both the officer and the accused. The accused's evidence failed to rebut the prosecution's case. Consequently, the confession was ruled admissible and could be formally tendered as evidence in the main trial.
Court Disposition
confession ruled voluntary and admissible
Orders
- The confession statement (P.MFI 2) is ruled voluntary and admissible in evidence and may be formally tendered in the main trial.
Full Case Text
Judgment text and source record
19 paragraphs
Republic v Buruk (Criminal Case E016 of 2021) [2022] KEHC 11660 (KLR) (24 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11660 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E016 of 2021
JR Karanja, J
May 24, 2022
Between
Republic
Prosecutor
and
Samwel Ombima Buruk
Accused
Ruling
1. The main objective of the trial within a trial was to determine whether or not the statement of confession (P.MFI 2) said to have been made by the accused was voluntary and therefore admissible in evidence.The accused denied the voluntariness of the statement and implied that it was not obtained in accordance with the applicable rules. However, the prosecution’s contention was on the contrary.
2. Basically, the “rule of the thumb” in relation to confessions or any statement appertaining thereto is that a confession or any admission of a fact leading to the proof of guilt is not admissible and shall not be proved against the accused unless it was made in court before a judicial officer or before a police officer not below the rank of inspector of police and a third party of the accused’s choice (see, S.25A of the Evidence Act).
3. The recording or taking of such statements is governed by the Evidence (out of court confessions) Rules 2009, which were enacted pursuant to S.25A (2) of the Evidence Act.Under Rule 13 of the Rules, the recording officer shall be the proper prosecution witness to prove to the court beyond reasonable doubt that the Rules were complied with. In this case, the key prosecution witness in that regard and indeed, in this trial within a trial was Chief IP Jebason Okongo (PW 5). He indicated that the confession herein (P.MFI 2) was recorded by himself in compliance with the rules and in particular Rules 4,5,7,8,9 and 10. This was confirmed by the certificate of confession signed by himself and countersigned by way of a thumbprint by the accused whose evidence herein failed to disprove the prosecution’s contention that he did actually record the confession voluntarily after having been arrested at Adungosi police station and taken to Amukura police station to record the statement.
4. In sum, the prosecution case in this trial within a trial was proved beyond reasonable doubt. The confession statement (P.MFI 2) was voluntary and admissible in evidence. It may therefore be formally tendered as evidence in the main trial.Ordered accordingly.
J.R. KARANJAHJ U D G E[DATED AND DELIVERED THIS 24TH DAY OF MAY 2022]