https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11000

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. E038 OF 2023** **REPUBLIC …………….……...………………………………………………. PROSECUTOR** **VERSUS** **COLLINS VITINYU SHITULE ………………………………………….….……… ACCUSED** **RULING** 1. The Accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. In the course of the proceedings, the Investigating Officer, PW8 testified that she interrogated the Accused person and that he gave evidence amounting to an admission of guilt to her during interrogation. 2. Counsel for the Accused person objected to the adduction of the alleged admission statement by the Investigating Officer and upon the objection being sustained, the Prosecution sought to produce the confession statement that was made by the Accused thereby necessitating a trial within trial in which the Prosecution called three witnesses. 3. CW1 was Chief Inspector Joyce Nanzala Shiyonga who testified that she wrote the confession statement. According to her, the evidence (Out of Court Confession Rules) were adhered to and she took twenty (20) minutes to record the statement which the Accused preferred to be taken in Kiswahili and that she interpreted the relevant questions to Kiswahili for better understanding by the Accused. The witness stated that there was a Translation Certificate by Maureen Kagule as well as a certificate by the Accused confirming that he had read the statement, had been informed that he was at liberty to correct or add anything therein, and that he wished to confirm that it was his final statement which he had given voluntarily. CW1 said that the Accused had no complaint of torture or duress and no evidence of ill health. Her testimony was that a witness, Benson Atoya was present and appended his signature to the statement. 4. On cross-examination, CWI stated that the Certificate of Translation in the handwritten version indicated that *“the adjoining statement was recorded in English and translated to Kiswahili by Maureen Kagule. I understand both languages and I have translated it to the best of my knowledge”.* She confirmed that there was no other handwritten translation certificate in the file regarding the confession. 5. Regarding the typed version, CW1 stated that the translation certificate indicated that, *“The adjoining statement was read in English and translated into Kiswahili by Joyce Nanzala…”* and was signed by Joyce and not Maureen. The witness further stated that there was no Kiswahili version of the statement in the police file. She denied the suggestion that there was a contradiction between the handwritten and typed certificate while maintaining that she was the one who translated to Kiswahili and that there was no Kiswahili translation of the statement by Maureen Kagule. 6. CW2 further said that whereas the Accused was arrested on 16/9/2023 at 1300 hours, he was placed in custody at Matunda police Station vide OB No. 19/17/9/2023 because he first underwent interrogation and recorded a statement before being booked. When referred to the Police File, she said that there was no statement recorded by the Accused during the said period. She admitted that between 1300 hours on 16/9/2023 to midnight of the same day, the Accused had not been booked into custody and that from her experience as a police officer, it was not procedural to hold the Accused for 11 hours before entering his arrest in the Occurrence Book. 7. When referred to the Confession Statement, CW1 said that it was taken on 24/9/2023, eight (8) days after the Accused was arrested and during which period the Accused was in custody. CW1 further admitted that some answers to the questions requisite to confession statements were not documented, more specifically, the Accused’s response to the question whether he wished to have an interpreter. Notwithstanding the absence of a response in the handwritten version, the typed version indicated the answer to the said question as “*No*”. With regard to the certificate, CW1 said that the same indicated that the Accused said, “*I have read the statement*” and not “*The statement has been read over to me*”. The witness said that by oversight, she failed to tick, “*Yes*”, to the Accused’s response to the question as to whether he needed an interpreter. 8. CW2 was Benson Atoya, an uncle of the Accused and the witness to the confession. He said that on a date he could not recall, he was summoned to the police station and asked to check on the Accused’s issues. On arrival at the police station at 2.00 p.m., he was directed to append his signature to a book they had without being informed what it was for. The Accused was present as he signed the book. Also present were three (3) police officers. CW2 said that the Accused looked weak and was crying and told him in vernacular that he had been assaulted and injured. The witness, who said he was illiterate said that he was forced to sign the document, which was not read over or explained to him and that he did not witness the Accused sign the document, and that he was there for ten (10) minutes. 9. CW3 was PC Maureen Kagule. It was her testimony that on 17/9/2023, she was instructed to take over the investigations in respect of the Accused, who had been arrested on the allegations that he and his friends had murdered someone. She interviewed the Accused and established that he was admitting to the offence. She said that her role in the confession was to translate the confession from English to Kiswahili and that she was present when the confession was taken by CW1 in the presence of CW2. According to her, the Accused’s rights were explained to him and he first spoke with CW2 before recording the statement. She read over the confession to the Accused in Kiswahili before he signed it as it had been recorded in the English language which is the common practice. She said that she did not know what CW2 discussed with the Accused as they talked on their own, and that CW2 was not forced to append his signature. CW3 further stated that the Accused narrated his confession in Kiswahili and CW1 recorded it in English. 10. On cross-examination, CW3 confirmed that she was present when the confession was being recorded and had the duty of being the translator. She said she was not aware that being the Investigating Officer, she was not supposed to be present during the confession. She said that she was the one who signed the translation certificate in the handwritten confession and that the variation in the typed version of the translation certificate was a typing error. Initially, she claimed not to know who typed the confession but later said that she was the one. She denied recording non-existent evidence as she typed the confession. She maintained that she was the one who translated the confession from English to Kiswahili and not CW1. 11. CW3 said that she participated in recording the confession statement as they were few in the station. 12. It is against the above backdrop that I am required to determine whether the confession statement allegedly made by the Accused is admissible. 13. An accused person is guaranteed a fair trial under Article 50 (2) of the Constitution and one of the components of the fair trial is derived from Article 49 (1) of the Constitution which provides:- ***“(1)An arrested person has the right—*** ***(a)to be informed promptly, in a language that the person understands, of—*** ***(i)the reason for the arrest;*** ***(ii)the right to remain silent; and*** ***(iii)the consequences of not remaining silent;*** ***(b)to remain silent;*** ***(c)to communicate with an advocate, and other persons whose assistance is necessary;*** ***(d)not to be compelled to make any confession or admission that could be used in evidence against the person.”*** 1. By dint of Article 50 (4) of the Constitution, the court is enjoined to exclude any evidence that is obtained in a manner that violates any right or fundamental freedom in the Bill of Rights if the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. An accused person has a non-derogable right to have any evidence obtained by police officers in a manner that violates the law to be excluded. 2. For a confession to be admissible, it must be taken in strict compliance with Article 49 (1) of the Constitution, the Evidence Act, and the Evidence (Out of Court Confession Rules) 2009. In the premises, the duty is upon the prosecution to demonstrate that the aforesaid rules were complied with. 3. Section 25A of the Evidence Act stipulates:- ***“(1) 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 Inspector of Police, and a third party of the person’s choice.*** ***(2) The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.”*** 1. Section 25A (2) gave rise to the Evidence (Out of Court Confession Rules) in which Rule 4 provides:- ***“(1) Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person—*** ***(a)has stated his preferred language of communication;*** ***(b)is provided with an interpreter free of charge where he does not speak either Kiswahili or English;*** ***(c)is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;*** ***(d)is informed of his right to have legal representation of his own choice;*** ***(e)is not deprived of food, water or sleep;*** ***(f)has his duration, including date and time of arrest and detention in police custody, established and recorded;*** ***(g)has his medical complaint, if any, adequately addressed;*** ***(h)is availed appropriate communication facilities; and*** ***(i)communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.*** ***(2) The recording officer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured.*** ***(3) The recording officer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording officer shall record the third party’s particulars and relationship to the accused person.”*** 1. Additionally, Rule 7 requires that the accused be informed of the option to record his own statement in his preferred language or have it recorded for him, and to clarify or add anything to his statement after it has been recorded. 2. Section 26 of the Evidence Act states as follows:- ***“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission 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.”*** 1. In **Republic v. Nicholas Ngugi Bangwa [2015] KEHC 2157 (KLR)***,* Lessit J, while considering the principles governing admissibility and evidential value of extra-judicial confessions cited the Indian case of **State of Rajasthan v. Raja Ram [2003] 8 SCC (180)** where the court held that such statements should:- **“i. It should be made voluntarily and should be truthful.** **ii. It should inspire confidence.** **iii.** **An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.** **iv.** **For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.** **v. Such statement essentially has to be proved like any other fact and in accordance with law*.*** 1. **Regarding accused retracted confession I find that the same falls under confessions and is admissible under section 26 of the Evidence Act, the same being extra-judicial confession. That section provides as follows:** **“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission 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”.** 1. That it is the imperative that an out-of-court confession statement should be taken in strict adherence to the rules cannot be gainsaid. In **Republic v. Yasmin Sambai Juma [2019] KEHC 10994 (KLR)**, Kimaru J, as he then was, dismissed an appeal against a ruling declaring a confession inadmissible on account of contradictory evidence on the part of the prosecution and stated:- ***“…In the considered opinion of this court, the law on confession should be interpreted strictly with a view to ensuring that the confessions recorded give confidence to the court that the same was not induced by torture, intimidation, duress or by subterfuge.”*** 1. I have carefully gone through the record of the confession statement and clearly, the same was obtained in utter disregard of the Confession Rules. Whether it was deliberate or out of ignorance of the rules, the effect is the same. The manner in which the statement was extracted from the Accused renders it inadmissible as it fails the test of admissibility on the following fronts:- 2. *It is not clear in which language the statement was taken as the handwritten version is in English. If the Accused indicated that he wished to have his statement taken in Kiswahili, the court would expect the handwritten version to be in Kiswahili, then a typed version in English.* 3. *The Translation Certificate is contradictory as to which officer translated the statement.* 4. *Some answers to the requisite questions were not documented or were wrongly recorded.* 5. *The statement was taken in the presence of the Investigating Officer, who testified that she was the translator and also typed the confession statement.* 6. The breach of the Confession Rules violated the Accused person’s rights to a fair trial. Notably, the presence and participation of the Investigating Officer during the taking of the confession raises issues as to whether the confession was voluntary in light of the fact that the Accused had been in the custody of the Investigating Officer for eight (8) days prior to the date his confession was taken. Additionally, the credibility of the statement itself is in doubt as it was taken by an officer who was conflicted since, being the Investigating Officer, she had an interest in securing sufficient evidence against the Accused. In acting as the translator and typist, the Investigating Officer had the opportunity and may have summarized, modified or altered the Accused person’s statement therefore reducing the recording officer to a mere spectator. 7. The absence of a Kiswahili version of the confession also vitiates the proceedings. Rule 10 of the Rules requires that where the confession is not recorded in English or Kiswahili, the recording officer shall ensure that it is translated into English or Kiswahili. Clearly, the Rules envisage that confessions should be recorded in the original language then translated where necessary, to the official language. The intention is to preserve the substratum of the confession and therefore in this case, the absence of the original statement is suspect. 8. In view of the foregoing, the objection raised by the defence is sustained. The alleged out-of-court confession statement is declared inadmissible in evidence. Dated, signed, and delivered at Kakamega, this 20th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Chala for the Prosecution Dr. Ongoya S.C. for the Accused Court Assistant: Polycap