[2022] KEHC 10253 (KLR)
The court held that the prosecution cannot cross-examine the accused on the contents of a statement recorded under inquiry unless that statement has been admitted into evidence as part of the prosecution's case. The procedure requires that the prosecution first seek to admit the statement, and if the defence objects...
Source-derived case information.
- Citation
- [2022] KEHC 10253 (KLR)
- Parties
- Applicant: Republic; Defendant: Victor Liyayi Mulinya; Defendant: Nixon Mulinya Seth; Defendant: Edwin Shivachi Seth; Defendant: Victor Alulu Mulinya
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 64 of 2018
- Procedural Posture
- Criminal Case / Ruling on Objection During Cross Examination
- Outcome
- Objection upheld; prosecution barred from referring to the statement during cross-examination.
- Judges
- WM Musyoka
- Legal Topics
- Admissibility of Evidence, Accused Person Statements, Cross Examination, Trial Within Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Victor Liyayi Mulinya
Defendant
Nixon Mulinya Seth
Defendant
Edwin Shivachi Seth
Defendant
Victor Alulu Mulinya
Defendant
Procedural Posture
Criminal Case / Ruling on Objection During Cross Examination
Legal Issues
- 1 Whether the prosecution can cross-examine the accused on the contents of a statement not admitted into evidence.
- 2 Whether an accused person can be confronted with a statement recorded under inquiry that was not proved to be voluntary or admitted after a trial within a trial.
Ratio Decidendi
The court held that the prosecution cannot cross-examine the accused on the contents of a statement recorded under inquiry unless that statement has been admitted into evidence as part of the prosecution's case. The procedure requires that the prosecution first seek to admit the statement, and if the defence objects on grounds of voluntariness, a trial within a trial must be conducted to determine admissibility. Since the statement in question was never admitted into evidence, it is not part of the record and cannot be used to confront the accused. The prosecution, having failed to produce the statement during its case, lost the opportunity to rely on it during cross-examination. The...
Court Disposition
Objection upheld; prosecution barred from referring to the statement during cross-examination.
Orders
- The objection by Mr. Khayumbi is upheld.
- The prosecution is barred from making any reference to the statement made by the accused on inquiry during cross-examination.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v Mulinya & 3 others (Criminal Case 64 of 2018) [2022] KEHC 10253 (KLR) (22 July 2022) (Ruling)
Neutral citation: [2022] KEHC 10253 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 64 of 2018
WM Musyoka, J
July 22, 2022
Between
Republic
Prosecution
and
Victor Liyayi Mulinya
1st Accused
Nixon Mulinya Seth
2nd Accused
Edwin Shivachi Seth
3rd Accused
Victor Alulu Mulinya
4th Accused
Ruling
1. During cross examination of the accused on 9th June 2022, by Mr. Mwangi, Prosecution Counsel, Mr. Khayumbi raised on the basis objection to the accused being questioned on the contents of a statement; that had been recorded under enquiry, on the basis that what the accused had told the police under inquiry differed from his statement to the court under oath in examination in chief. Mr. Khayumbi argued that the person who recorded that statement from the accused did not attended court to be cross examined on the circumstances under which he or she recorded the statement. He asserted that the accused should be cross-examined only on the basis of what he informed the court.
2. Mr. Mwangi responded by arguing that the accused had not denied making the statement, and, therefore, he could not run away from its contents.
3. It is trite law that a statement by an accused person is not admissible against him unless it is proved to have been voluntary. The procedure is that the state must first seek to have the statement put in evidence as a part of the case against the accused person. Unless it is put in evidence and admitted to the record by the court, the accused cannot be cross-examined on it. The defence has the liberty to object to it, on grounds that it is not obtained voluntarily, whereupon the court conducts a “trial within a trial,” and delivers a ruling to determine voluntariness and admissibility. That should be done even before the statement is marked for identification. See Musili Tulo vs. Republic [2014] eKLR (Waki, Ouko & Mohammed JJA), Republic vs. Samuel Ombima Buruk[2022] eKLR (JR Karanja J) and Republic vs. Gachanja & others [2001] eKLR (Mbongoli Mbagha J)
4. The statement that Mr. Mwangi was cross-examining the accused on was never admitted as part of the evidence against the accused person, when the prosecution presented its case. It is, therefore, not on record. It is not available for the prosecution to confront the accused with its contents. If the prosecution intended to challenge the accused on its contents, it should have sought to produce it as evidence in their case, so, that they could challenge the accused on its contents at the trial. The prosecution did not do that, and it lost the opportunity. It cannot, at the stage, go back to it. It is not material that this court can pay any regard to.
5. The objection by Mr. Khayumbi is upheld. Mr. Mwangi, or whoever shall continue to cross-examine the accused, is hereby barred from making any reference to the statement made by the accused on inquiry.
RULLING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 22ND DAY OF July 2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Kagai, instructed by the Director of Public Prosecutions, for the Republic.Mr. Otsyeno for Mr. Khayumbi , Advocate for the accused.