[2017] KEHC 1441 (KLR)
The court found that the accused was in custody at Garissa GK Prison on the material day and that the police officer, accompanied by the accused's brother, met the accused to record a statement. All witnesses, including the accused, agreed on the occurrence of this meeting. The court found the discrepancy in the...
Source-derived case information.
- Citation
- [2017] KEHC 1441 (KLR)
- Parties
- Applicant: Republic; Defendant: Hussein Abdi Kolo
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2013
- Procedural Posture
- Criminal Case / Trial Within a Trial on Admissibility of Statement
- Outcome
- Statement found admissible; prosecution's application allowed.
- Judges
- GMA Dulu
- Legal Topics
- Admissibility of Confessions, Voluntariness of Statements, Trial Within Trial
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hussein Abdi Kolo
Defendant
Procedural Posture
Criminal Case / Trial Within a Trial on Admissibility of Statement
Legal Issues
- 1 Whether the accused's statement to the police was made voluntarily and is therefore admissible in evidence.
- 2 Whether there was any fabrication or coercion by the police in obtaining the statement.
Ratio Decidendi
The court found that the accused was in custody at Garissa GK Prison on the material day and that the police officer, accompanied by the accused's brother, met the accused to record a statement. All witnesses, including the accused, agreed on the occurrence of this meeting. The court found the discrepancy in the vehicle work ticket to be a clerical error, as all parties agreed the meeting took place in the morning. The accused's claim of being tricked or coerced was not supported by evidence, particularly as his brother, who was present, was not called to corroborate his version. The court concluded that the statement was made voluntarily and was therefore admissible in evidence.
Court Disposition
Statement found admissible; prosecution's application allowed.
Orders
- The statement made by the accused is admitted in evidence as voluntarily made.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 4 OF 2013
REPUBLIC.......................................................PROSECUTOR
VERSUS
HUSSEIN ABDI KOLO...........................................ACCUSED
RULING
1. This ruling relates to a trial within a trial on the admissibility of the statement which the accused is said to have recorded with the police, in respect of the allegations against him.
2. In the trial within a trial, the prosecution called two witnesses; Assistant Superintendent of Police Joseph Osugo Obare and Superintendent of Prison Jocktan Komora Jilo.
3. Assistant Superintendent of Police Joseph Osugo Obare stated on oath that on 27/2/2013 he proceeded to the Garissa G.K Prison in a Police Land Cruiser vehicle in the morning at 9. 30 am from Madogo Police Station. On arrival at the prison he met the incharge Mr. Jilo to whom he requested production of the suspect Hussein Abdi (accused) who had a pending case of assault.
4. The said Assistant Superintendent of Police was in the company of a brother of the suspect by the name Ali Abdi Ali.
5. It was his evidence that while in the office of the incharge of the Prison, the accused was brought and voluntarily made a statement to him in Kiswahili language in the presence of his brother Ali Abdi Ali, which he recorded and the accused and brother signed and he counter signed. He then prepared a certificate and also translated the statement into English language.
6. The second prosecution witness Superintendent Jocktan Jilo testified on oath that, indeed that morning a police officer came to the Garissa GK prison and asked for the accused, a remandee, to record a statement. He availed the accused to the police officer and gave them his office for the exercise and left. He was later informed that the exercise had been finalized and took over his office.
7. The accused gave unsworn testimony. He stated that he met the police officer (Chief Inspector Osugo) at Garissa G.K Prison, and that he did not know how to write and that the police officer misled him, and then signed for him a statement whose contents he did not know. He stated further that indeed his brother Ali Abdi was with Chief Inspector Osugo, but denied admitting fighting the deceased.
8. Having considered the evidence of the prosecution and the defence in this trial within a trial, I find that has been agreed that on the material day the accused was in Garissa GK prison custody. It was also agreed that Chief Inspector Osugo and a bother of the accused went to the prison together, and that C.I Osugo (now Asst. Superintendent) called the accused to record a statement in the presence of his brother Ali Abdi Ali.
9. The variance is that the accused said in his testimony that he was threatened and tricked by Asst. Superintendent Osugo, who signed that statement for him while, Asst. Superintendent Osugo said that accused made the statement and signed the same. The second variance is with regard to time when the police Land Cruiser vehicle left Madogo Police Station to the Garissa G.K Prison. Though Asst. Superintendent Osugo said it was in the morning at 9. 30 am, the motor vehicle work tickets on scrutiny during cross-examination showed that it was in the early hours of the night.
10. From the explanations given by Asst. Superintendent Osugo, in my view, the entries in the motor vehicle work ticket must have been a mistake of the motor vehicle entries made by the driver, as all witnesses including the accused agreed that the time when Asst. Superintendent Osugo went to the Garissa GK prison was in the morning. They also all agreed that the police officer met the accused that day to record a statement.
11. As to whether the statement was a fabrication by the police, my answer is in the negative. The accused’s brother was present and in my view, if the accused wanted to show he was a tricked, and then there would be nothing easier than calling the said brother as his witness to support his version. It is of note that the accused has not indicated any difficulty in calling his brother as a witness.
12. I thus conclude the trial within a trial by finding for the prosecution. I find that the statement was voluntarily made by the accused and as such is admissible in evidence in this case.
It is so ordered.
Dated and delivered at Garissa on 14th December, 2017.
George Dulu
JUDGE