[2009] KEHC 2299 (KLR)
The court held that Section 25A of the Evidence Act requires that a confession by an accused person must be made before a judge or magistrate in court, or before a police officer as specified. In this case, the statement was taken by a magistrate at a police station, not in court or chambers. The court found this to...
Source-derived case information.
- Citation
- [2009] KEHC 2299 (KLR)
- Parties
- Respondent: Republic; Accused: Jacob Njue Daniel alias Kimwitha
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2007
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Confession
- Outcome
- Objection upheld; confession ruled inadmissible.
- Judges
- J Karanja
- Legal Topics
- Admissibility of Confessions, Evidence Act Section 25a, Confession Statements, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Jacob Njue Daniel alias Kimwitha
Accused
Procedural Posture
Criminal Case / Ruling on Admissibility of Confession
Legal Issues
- 1 Whether a confession statement taken by a magistrate at a police station is admissible under Section 25A of the Evidence Act.
- 2 Whether the requirements of Section 25A of the Evidence Act were complied with in the taking of the accused's statement.
Ratio Decidendi
The court held that Section 25A of the Evidence Act requires that a confession by an accused person must be made before a judge or magistrate in court, or before a police officer as specified. In this case, the statement was taken by a magistrate at a police station, not in court or chambers. The court found this to be a clear violation of Section 25A, rendering the confession inadmissible. The judge emphasized that the statutory requirement is mandatory and cannot be circumvented by taking the statement at a police station, even if a magistrate is present. The court declined to admit the confession into evidence, upholding the accused's objection.
Court Disposition
Objection upheld; confession ruled inadmissible.
Orders
- The cautionary statement taken by the magistrate at the police station is inadmissible and shall not be produced in evidence.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL CASE 9 OF 2007
REPUBLIC…………………………………………………………PROS
VERSUS
JACOB NJUE DANIEL ALIAS KIMWITHA……………...ACCUSED
RULING
An issue arose as to the admissibility of a cautionary statement made by the accused person herein pursuant to Section 25 A of the Evidence Act. The said statement was taken by Mr. Onyango who was a Senior Resident Magistrate based at Runyenjes.
Mr. Okwaro counsel for the accused person objected to the production of the said statement saying that it offended the provisions of Section 25 A of the Evidence Act. This provision has been challenged many a times by defence counsel. There are several rulings from the High Court on the subject but none so far from the Court of Appeal. Personally, I have delivered at least two rulings following such objections. These rulings are nonetheless only of persuasive force and are not binding on me. The situations I have dealt with however have been different from the present situation. In my earlier matters, the accused person had been present before a magistrate in chambers which also acted as a court and the statement was taken there.
In this case however, the magistrate went to the police station and took the statement there. This in my view is outrightly contrary to the Section 25 A of the Evidence Act which provides:-
“A confession or any admission of a fact tending to theproof of guilt made by an accused person is notadmissible and shall not be proved as against such personunless is made IN COURT before a Judge, a Magistrateor before a Police Officer……………”
Even on the face of it, this section requires the accused person to be present before a Judge or a Magistrate in Court (read to include Chambers) but definitely not at the police station.
The mere fact that this statement was not taken in court by a magistrate or Judge but a police station but by the magistrate invalidates it. It runs contrary to the spirit of Section 25 A Evidence Act. I do not even need to go into the discourse as to the viability or legality of Section 25 A of the Evidence Act or the doctrine of separation of powers. That I will leave for another day. The said confession is therefore inadmissible and it will not be produced in evidence.
W. KARANJA
JUDGE
Delivered in open court this 8th day of June 2009.
In presence of:- Mr. Okwaro for accused Mr. Omwega for stat and the accused person.
W. KARANJA
JUDGE
8/6/2009