[2017] KEHC 8084 (KLR)

[2017] KEHC 8084 (KLR)

The court held that the accused, having developed a speech disability while in custody, is a person with disability as defined by the Constitution and the Persons with Disabilities Act. The Evidence Act expressly allows a witness who cannot speak to give evidence in any intelligible manner, including writing or signs, and such evidence is deemed oral. The court reviewed local and foreign case law and statutory provisions, concluding that the fundamental requirement is to adopt measures that facilitate the accused to tender intelligible evidence without compromising his right to a fair trial. The court determined that the most appropriate procedure is for the accused to answer pre-prepared...

Citation
[2017] KEHC 8084 (KLR)
Parties
Applicant: Republic; Defendant: Elijah Weru Mathenge
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
17 January 2017
Case Number
Criminal Case 106 of 2013
Procedural Posture
Criminal Case / Ruling at Defence Stage; Procedure for Taking Defence Evidence of Accused With Speech Disability
Outcome
Application for special procedure to facilitate accused's testimony allowed; orders issued for special sitting and written oath procedure.
Judges
FM Mutuku
Legal Topics
Murder Charge, Disability Rights, Evidence of Disabled Witness, Fair Trial Rights
Source Language
English
Criminal Law Murder Charge Disability Rights Evidence of Disabled Witness Fair Trial Rights

Case Brief

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Parties

Republic

Applicant

Elijah Weru Mathenge

Defendant

Procedural Posture

Criminal Case / Ruling at Defence Stage; Procedure for Taking Defence Evidence of Accused With Speech Disability

Legal Issues

  1. 1 Whether the accused, who has developed a speech disability while in custody, can competently testify in his own defence in a murder trial.
  2. 2 What procedure should the court adopt to facilitate the accused's testimony given his inability to speak.
  3. 3 Whether the rights of the accused to a fair trial and to adequate facilities for his defence are preserved under the proposed procedure.

Ratio Decidendi

The court held that the accused, having developed a speech disability while in custody, is a person with disability as defined by the Constitution and the Persons with Disabilities Act. The Evidence Act expressly allows a witness who cannot speak to give evidence in any intelligible manner, including writing or signs, and such evidence is deemed oral. The court reviewed local and foreign case law and statutory provisions, concluding that the fundamental requirement is to adopt measures that facilitate the accused to tender intelligible evidence without compromising his right to a fair trial. The court determined that the most appropriate procedure is for the accused to answer pre-prepared...

Court Disposition

Application for special procedure to facilitate accused's testimony allowed; orders issued for special sitting and written oath procedure.

Orders

  • The accused shall testify by answering pre-prepared questions in writing and by using signs or gestures as appropriate.
  • A special written oath shall be administered to the accused, to be affirmed by nodding his head.