[2018] KEHC 151 (KLR)

Parties

Procedural Posture

Criminal Case / Ruling on Evidentiary Objection

Legal Issues

1. 1 Whether the accused's right to silence under the Constitution was violated by the admission of a confession made to a police constable.
2. 2 Whether section 25A of the Evidence Act prohibits admission of confessions made to police officers below the rank of inspector.
3. 3 Whether section 111(1) of the Evidence Act can override constitutional rights under Article 49(1).

Ratio Decidendi

The court found that the accused's right to silence under Article 49(1) of the Constitution was violated because the confession was obtained without informing the accused of this right, and the confession was made to a police constable, not an officer of the required rank under section 25A of the Evidence Act. The court held that the constitutional right to silence is paramount and cannot be overridden by section 111(1) of the Evidence Act or by pre-2010 case law. The specific statutory provision (section 25A) and the constitutional guarantee of the right to silence both prohibit the admission of the confession in these circumstances. Therefore, the objection to the admissibility of the...

Court Disposition

Objection to admissibility of confession upheld.

Orders

• The confession made by the accused to the police constable is inadmissible and excluded from evidence.