https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11739

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL CASE NO. E012 OF 2022** **REPUBLIC …..……………….......……………………..………………………..PROSECUTION** **VERSUS** **MASHU KARISA KITSAO** **………….……….….......……………………..………....ACCUSED** **RULING** 1. The accused herein is charged with the offence of the murder of one Jumwa Karisa Kitsao (Jumwa). 2. What is before the Court for determination, is an application by the prosecution under Section 33 of the Evidence Act, for admission of a witness statement by one Karisa Kitsao, who died before testifying in the present proceedings. 3. The defence opposed the application on grounds that they will not be able to cross examine the maker of the statement which will be prejudicial to the accused. 4. Section 33 of the Evidence Act provides for instances of admissibility of statements made by persons who for stipulated reasons, are incapable of giving evidence. It provides as follows: ***Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases*** 1. ***relating to cause of death*** ***when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;*** 1. Flowing from the foregoing, it can be seen that a statement of a person as to the cause of his death otherwise known as a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. It must be noted that such statement must be made by the deceased person as to the cause of his own death and not of another. 2. In **Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR),** the Court of Appeal had this to say about the import of Section 33(a) of the Evidence Act: ***Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements.*** 1. In the instant case, the statement that the prosecution seeks to produce, was not made by Jumwa as to the cause of her death but by Karisa Kitsao as to the cause of Jumwa’s death. I accordingly find that the statement is not admissible as contemplated under Section 33(a) of the Evidence Act. 2. The prosecution further seeks admission of the statement on ground that the same was recorded by PW3, the investigating officer, while performing his official duties. Section 33(b) of the Evidence Act provides for the admissibility of statements made in the course of business under the following circumstances: ***when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;*** 1. Under this provision, a statement made by a person in the ordinary course of business is admissible if such person is incapable of giving evidence for the reasons stipulated. 2. The circumstances herein are that the prosecution seeks that PW3 produces a statement of a witness who is now deceased, on grounds that the PW3 recorded the same in the ordinary course of business. This is clearly a misapprehension of the import of Section 33(b). Such statement would only be admissible if made by PW3 in ordinary course of business and he was for the stipulated reasons, incapable of giving evidence. 3. In light of the foregoing, the statement made by Karisa Kitsao, now deceased, is not admissible in evidence. To allow the production of the statement would greatly prejudice the accused and would militate against the rights guaranteed to him under Article 50 of the Constitution. 4. In the premises, I disallow the application made by the prosecution. **DATED SIGNED and DELIVERED in MALINDI this 28th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**