https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11783

Republic v Onyancha (Criminal Case 39 of 2023) [2026] KEHC 11783 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11783 (KLR) Republic of Kenya In the High Court at Kibera Criminal Case 39 of 2023 DR Kavedza, J July 29, 2026 Between Republic Prosecution and Philip Ondara Onyancha Accused Ruling 1.The accused is charged with the offence of murder contrary to sections 203 and 204 of the Penal Code. During the hearing of the prosecution's case, the prosecution sought to produce in evidence a statement recorded by PW13, Mr. Dennis Kinaro, a retired magistrate, which it contended constituted the accused's confession. PW13 testified that on Saturday, 12th June 2010, while serving as a Resident Magistrate, he was requested to attend the Supreme Court Building, where the accused was presented before him as a suspect in a murder investigation for purposes of recording a confession. 2.Vide a ruling delivered on 26th March 2025, this court declined the prosecution's application to produce the impugned statement and directed that a trial within a trial be conducted to determine whether the statement satisfied the constitutional and statutory requirements governing the admissibility of confessions. 3.Learned counsel for the accused, Mr Wakaba, submitted that the impugned statement is inadmissible as it was obtained in violation of Articles 25(c), 49 and 50 of the Constitution, sections 25, 25A and 26 of the Evidence Act, and the Evidence (Out of Court Confessions) Rules, 2009. Counsel argued that the accused was not informed of his constitutional rights, including the right to legal representation and the privilege against self-incrimination, and that the mandatory safeguards governing the recording of an out-of-court confession were not observed. Reliance was placed on Republic v Ahmad Abolfathi Mohammed & Another [2019] eKLR, Kanini Muli v Republic [2014] KECA 870 (KLR), Republic v Maalim Komora Godana & Another [2006] eKLR, Republic v Kibon Kibelion [2018] eKLR and R v Yasin Sambai Juma [2019] eKLR. 4.Counsel further submitted that although the impugned statement was recorded before a magistrate, it remained an extra-judicial confession because it was taken before plea had been taken and outside any judicial proceedings. Consequently, it was subject to the mandatory safeguards prescribed under section 25A of the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009. 5.Counsel further contended that PW13 failed to ascertain and record the accused's preferred language, failed to inform him of his right to legal representation and his right to have an independent third-party present, failed to advise him of his right to record the statement personally, and failed to afford him an opportunity to amend or clarify the statement before signing it. It was therefore urged that the cumulative effect of these omissions rendered the confession inadmissible. 6.I have considered the evidence adduced during the trial within a trial, the rival submissions and the applicable law. The sole issue for determination is whether the impugned confession was obtained in compliance with the Constitution, the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009. 7.The admissibility of confessions in Kenya is governed by the Constitution, the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009. Article 49 guarantees the rights of arrested persons, while Article 50 safeguards the right to a fair trial, including the privilege against self-incrimination. These constitutional guarantees are reinforced by sections 25, 25A and 26 of the Evidence Act, which prescribe the circumstances under which a confession may be received in evidence. 8.Section 25 of the Evidence Act defines a confession as follows:“A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence." 9.Section 25A(1) of the Evidence Act provides:“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person's choice." 10.Pursuant to section 25A(2), the Evidence (Out of Court Confessions) Rules, 2009 were issued, prescribing mandatory safeguards for the recording of confessions. These Rules are intended to give practical effect to the constitutional guarantees of a fair trial and to ensure that any confession admitted in evidence is voluntary, reliable and obtained without oppression, coercion or procedural unfairness. The prosecution bears the burden of demonstrating strict compliance with these provisions before a confession can be admitted. As the Supreme Court observed in Republic v Ahmad Abolfathi Mohammed & Another [2019] eKLR, compliance with the Constitution, the Evidence Act and the applicable Rules is a condition precedent to the admissibility of a confession. 11.It is against that constitutional and statutory framework that this court now considers whether the confession relied upon by the prosecution satisfied each of the mandatory requirements prescribed by law. 12.The first issue for determination is whether the impugned statement constituted an extra-judicial confession and, if so, whether it complied with the legal requirements governing such confessions. Counsel for the accused contended that although the statement was recorded by a magistrate, it was recorded before plea had been taken and before the commencement of judicial proceedings. Consequently, it remained an extra-judicial confession subject to the mandatory safeguards prescribed by section 25A of the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009. 13.The mere fact that a confession is recorded before a magistrate does not, without more, convert it into a judicial confession. In Republic v Maalim Komora Godana & Another [2006] eKLR, the court distinguished a judicial confession made during the course of judicial proceedings from an extra-judicial confession recorded outside the trial process. Similarly, in Kanini Muli v Republic [2014] KECA 870 (KLR), the Court of Appeal held that a confession recorded by a magistrate who is not seized of the trial remains an extra-judicial confession and must comply with the mandatory requirements of section 25A of the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009. I therefore find that the impugned statement was an extra-judicial confession, and its admissibility falls to be determined strictly within that statutory framework. 14.The next issue is whether the confession was recorded before a person authorised by law. Section 25A(1) of the Evidence Act provides:“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person's choice." 15.PW13 testified that he was serving as a Resident Magistrate when the accused was brought before him for purposes of recording a confession. He introduced himself to the accused, informed him of the purpose of the interview and proceeded to record the statement in his chambers. There is no dispute that PW13 was, at the material time, a judicial officer within the meaning of section 25A(1) of the Evidence Act. I therefore find that the confession was recorded before a competent person authorised by law. 16.The next issue is whether the accused was properly cautioned before making the confession. Rule 5 of the Evidence (Out of Court Confessions) Rules, 2009 provides:“Before recording a confession, the recording officer shall administer the following caution to the accused person in a language that the accused person understands— 'Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be put into writing and given in evidence.” 17.PW13 testified that he informed the accused that he was under no obligation to make a statement and that whatever he chose to say would be recorded and could be used in evidence against him. The statement itself reflects that a caution was administered before the interview commenced. Although the wording employed by PW13 did not reproduce Rule 5 verbatim, it substantially conveyed the essence of the statutory caution. I am therefore satisfied that there was substantial compliance with Rule 5. 18.The next issue is whether the accused's preferred language was ascertained and recorded. Rule 4(a) of the Evidence (Out of Court Confessions) Rules provides that the recording officer shall "ask and record the accused person's preferred language of communication." 19.During cross-examination, PW13 candidly admitted that he did not record that he had asked the accused to indicate his preferred language of communication. Although he testified that English was agreed upon because the accused was conversant with it, he equally conceded that this important safeguard was not reflected in either the confession or his record. The requirement under Rule 4(a) is couched in mandatory terms. It is intended to eliminate any doubt that the accused fully understood the proceedings and appreciated the consequences of making a confession. I therefore find that there was non-compliance with Rule 4(a) of the Evidence (Out of Court Confessions) Rules, 2009. 20.The next issue is whether the accused was informed of his right to legal representation before the confession was recorded. This issue is central to the determination of the admissibility of the impugned confession. The right to legal representation is a constitutional guarantee intended to ensure that an accused person makes an informed decision before electing to waive the privilege against self-incrimination. 21.Article 49(1)(c) of the Constitution provides that an arrested person has the right -“to communicate with an advocate, and other persons whose assistance is necessary." 22.Further, Rule 4(d) of the Evidence (Out of Court Confessions) Rules, 2009 provides that the recording officer shall -“inform the accused person of his right to have legal representation of his own choice." 23.The language employed in the Rule is mandatory. The recording officer has no discretion whether or not to inform the accused of this right. During cross-examination, PW13 unequivocally admitted that he did not inform the accused of his right to legal representation before recording the confession. Neither the confession itself nor the certificate accompanying it contains any indication that the accused was advised of this right or that he knowingly waived it. The omission is neither disputed nor explained by the prosecution. 24.The importance of this safeguard cannot be overstated. The accused was potentially facing a charge of murder contrary to sections 203 and 204 of the Penal Code, one of the most serious offences known to our criminal justice system. A confession to such an offence has far-reaching consequences and may, in appropriate cases, constitute the strongest evidence against an accused person. In those circumstances, the right to legal representation is one of the most significant safeguards. It enables an accused person to make an informed and voluntary decision whether to exercise the right to remain silent or to make a statement capable of being used against him. Compliance with Rule 4(d) is therefore not a procedural technicality capable of being overlooked but a fundamental safeguard designed to protect the constitutional right to a fair trial. 25.The Supreme Court in Republic v Ahmad Abolfathi Mohammed & Another [2019] eKLR reaffirmed that a confession is admissible only where it has been obtained in strict compliance with the Constitution, the Evidence Act and the applicable Rules. Likewise, in Republic v Kibon Kibelion [2018] eKLR, the court found that a confession was inadmissible where the recording officer failed to inform the accused of the right to have an advocate of his choice present during the recording of the confession. The court observed:“The Recording Officer did not inform the Accused Person of his right to have an advocate of his choice present during the recording of the confession." 26.The court held that the omission constituted a breach of the mandatory provisions of the Evidence (Out of Court Confessions) Rules, 2009. I agree with that reasoning. The prosecution was under a duty to demonstrate that PW13 complied with Rule 4(d). Instead, the evidence establishes the contrary. The failure to inform the accused of his constitutional and statutory right to legal representation deprived him of an essential safeguard before he allegedly confessed to the offence of murder. In my view, that omission, standing alone, constitutes substantial non-compliance with the mandatory requirements of the Evidence (Out of Court Confessions) Rules, 2009 and weighs heavily against the admissibility of the confession. 27.The next issue is whether the accused was informed of his right to nominate an independent third party to be present during the recording of the confession. Rule 4(e) of the Evidence (Out of Court Confessions) Rules provides that the recording officer shall —“ask the accused person to nominate a third party to be present during the recording of the confession and record the particulars of the third party and the relationship of the third party to the accused person." 28.The purpose of this safeguard is to ensure transparency in the recording process and to provide an independent witness capable of confirming that the confession was made freely and voluntarily. It is an important protection against coercion, intimidation or undue influence. 29.PW13 admitted that only he and the accused were present throughout the recording of the confession. There is no evidence that the accused was informed of his right to nominate an independent third party or that he waived that right. Equally, there is no record of the particulars of any nominated person, as expressly required by Rule 4(e). In Republic v Kibon Kibelion [2018] eKLR, the court held that the failure to invite an accused person to nominate a third party of his choice amounted to a breach of the mandatory provisions of the Confessions Rules. The reasoning in that decision applies with equal force in the present case. I therefore find that the prosecution failed to establish compliance with Rule 4(e), thereby depriving the accused of another statutory safeguard enacted to protect the fairness and integrity of the confession process. 30.The next issue is whether the accused was informed of his right to record the statement personally. Rule 7 of the Evidence (Out of Court Confessions) Rules, 2009 provides:“Where the accused person elects to make a confession, the recording officer shall inform the accused person that he has the option to record his own statement in his preferred language or to have the recording officer record it." 31.The Rule confers upon the accused an important procedural safeguard by ensuring that the confession accurately reflects his own words and is not influenced by the recording officer. 32.The evidence adduced during the trial within a trial does not demonstrate that PW13 informed the accused of this right. Neither PW13's testimony nor the confession itself indicates that the accused was advised that he could personally record the statement in his preferred language or elect to have it recorded by the magistrate. The prosecution therefore failed to establish compliance with Rule 7. I accordingly find that this mandatory safeguard was not observed. 33.The next issue is whether the accused was afforded an opportunity to amend, clarify or add to the statement after it had been recorded. Rule 8 of the Evidence (Out of Court Confessions) Rules, 2009 provides:“Immediately after a confession has been recorded, the recording officer shall inform the accused person that he may clarify anything in the confession, add anything he wishes or alter anything he has said and shall record any clarification, addition or alteration made by the accused person." 34.The purpose of the Rule is to ensure that the confession ultimately adopted by the accused accurately reflects his account and to eliminate any suggestion that the statement represents the recording officer's interpretation rather than the accused's own words. PW13 testified that after recording the statement, he read it back to the accused before both of them signed every page. While that step was commendable, Rule 8 requires more than merely reading the statement back. The Rule expressly obliges the recording officer to inform the accused of the right to clarify, amend or add to the statement before signing it. There is no evidence that PW13 discharged that obligation. Consequently, I find that there was non-compliance with Rule 8. 35.The next issue is whether the confession was voluntarily made. Section 26 of the Evidence Act provides:“A confession or admission of a fact tending to the proof of guilt shall not be admissible if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 36.PW13 testified that the accused did not complain of having been assaulted, threatened or induced by the police and that the confession was recorded voluntarily. The accused equally signed each page of the statement and the accompanying certificate. There is no evidence before this court that the confession was procured by physical force, threats, promises or other improper inducement. I am therefore satisfied that the prosecution established that the confession was voluntary within the meaning of section 26 of the Evidence Act. 37.However, voluntariness alone is not the sole criterion governing admissibility. The Court of Appeal in Karukenya & 4 Others v Republic (1987) KLR 458 held that the prosecution bears the burden of proving that a confession was voluntarily made and recorded in accordance with the law before it can properly be admitted in evidence. Likewise, in Imbindi v Republic (1983) KLR 345, the Court held that where the admissibility of a confession is challenged, the trial court must conduct a trial within a trial to determine whether all the statutory safeguards were complied with. This court has undertaken precisely that exercise. 38.Having considered the evidence in its entirety, I find that although the prosecution established that the confession was recorded before a competent judicial officer and that there was no evidence of inducement, threats or coercion, it failed to establish strict compliance with several mandatory provisions of the Evidence (Out of Court Confessions) Rules, 2009. The prosecution did not demonstrate that the accused's preferred language was ascertained and recorded as required by Rule 4(a); that he was informed of his constitutional and statutory right to legal representation under Article 49(1)(c) of the Constitution and Rule 4(d); that he was informed of his right to nominate an independent third party under Rule 4(e); that he was informed of his right to record the statement personally under Rule 7; or that he was advised of his right to clarify, amend or add to the statement under Rule 8. 39.These mandatory safeguards are mandatory are intended to give practical effect to the constitutional guarantees of a fair trial and the privilege against self-incrimination. The court cannot overlook their observance merely because there is evidence suggesting that the confession was voluntarily made. 40.Of particular significance is the failure to inform the accused of his right to legal representation. The accused was facing a charge of murder contrary to sections 203 and 204 of the Penal Code, one of the gravest offences in our criminal justice system. Although the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared the mandatory nature of the death sentence unconstitutional, murder remains punishable by the severest penalty prescribed by law. In proceedings of such gravity, the right to legal representation assumes paramount importance. It enables an accused person to appreciate the legal consequences of making a confession and to make an informed choice whether to exercise the constitutional right to remain silent or to waive that right. Compliance with Rule 4(d) and Article 49(1)(c) cannot therefore be regarded as a procedural technicality. It is a fundamental safeguard which lies at the heart of a fair criminal process. 41.The evidence before the Court shows that the confession was taken by a magistrate on the directions of the Director of Public Prosecutions and on a Saturday. The recording of a confession is a judicial function to be performed independently and impartially by a magistrate designated under section 25A of the Evidence Act. A judicial officer does not act at the direction or behest of the Director of Public Prosecutions, the police or any other investigative agency. Such conduct is inconsistent with the constitutional guarantee of judicial independence under Articles 160(1) and 160(5) of the Constitution, which requires judicial officers to exercise their functions free from the control or direction of any person or authority. 42.Further, judicial business on a Saturday is not conducted as a matter of course. Under Article 161 of the Constitution, read together with the Judicial Service Act and the Judiciary's administrative framework, courts sit only during the prescribed days and hours unless otherwise authorised. Any sitting outside the ordinary court schedule, including on weekends or public holidays, requires lawful administrative authorisation by the Chief Justice or pursuant to a duly gazetted practice direction or special arrangement. No material was placed before the Court to demonstrate that the magistrate had been authorised to conduct judicial business on the Saturday in question or that the court was lawfully constituted for that purpose. In addition, there is no evidence that the confession was recorded in a setting that guaranteed the independence, privacy and voluntariness contemplated by Rule 4 of the Evidence (Out of Court Confessions) Rules, 2009, which envisages a confession being recorded in circumstances free from external influence or intimidation. 43.In the premises, I find that the prosecution has failed to discharge the burden of proving that the impugned confession was obtained in strict compliance with Articles 49 and 50 of the Constitution, sections 25, 25A and 26 of the Evidence Act, and the Evidence (Out of Court Confessions) Rules, 2009. The impugned confession is accordingly excluded from evidence and expunged from the record. The trial shall proceed on the basis of the remaining admissible evidence. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026______________D. KAVEDZAJUDGEIn the presence of:Mr. Omirera for the ProsecutionMr. Wakaba for the Accused.Karimi Court Assistant.