[2020] KEHC 8850 (KLR)
The court held that under section 127(2)(ii) of the Evidence Act, the husband of the accused, Mohamed Ali, is a competent witness but cannot be called by the prosecution to testify against the accused unless upon the application of the accused herself. The marriage between the accused and Mohamed Ali is subsisting...
Source-derived case information.
- Citation
- [2020] KEHC 8850 (KLR)
- Parties
- Applicant: Republic; Defendant: Zamzam Malio
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2019
- Procedural Posture
- Criminal Case / Ruling on Admissibility of Witness Evidence
- Outcome
- Application to call the accused's husband as a prosecution witness is denied.
- Judges
- CM Kariuki
- Legal Topics
- Competence of Witnesses, Spousal Privilege, Evidence Act Section 127, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Zamzam Malio
Defendant
Procedural Posture
Criminal Case / Ruling on Admissibility of Witness Evidence
Legal Issues
- 1 Whether the husband of the accused, Mohamed Ali, is a competent and compellable witness for the prosecution under section 127 of the Evidence Act.
- 2 Whether the prosecution can call the accused's spouse to testify against her without her application.
Ratio Decidendi
The court held that under section 127(2)(ii) of the Evidence Act, the husband of the accused, Mohamed Ali, is a competent witness but cannot be called by the prosecution to testify against the accused unless upon the application of the accused herself. The marriage between the accused and Mohamed Ali is subsisting and recognized under the law, including polygamous and customary marriages as per section 127(4). The prosecution's attempt to call Mohamed Ali as a witness without the accused's application is improper and contrary to the statutory protection afforded to spouses in criminal proceedings. The court relied on the precedent set in Julius Mwita Range vs Republic, which affirmed that...
Court Disposition
Application to call the accused's husband as a prosecution witness is denied.
Orders
- Mohamed Ali, the accused's husband, shall not testify for the prosecution unless upon application by the accused.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 7 OF 2019
REPUBLIC...................................PROSECUTION
VERSUS
ZAMZAM MALIO...............................ACCUSED
RULING
1. Under section 127 (2) (ii) Evidence Act the law is;
“In every proceedings every person charged with an offence and the wife or husband of the person charged shall be a competent witness....at every stage of proceedings whether that person is charge alone or jointly with others provided that:
i. ...........
ii. Save as provided by subsection 3 the wife or husband of such a person charged shall not be called as a witness except upon application of the person charged.”
2. Subsection 3 of the same section is not applicable in this case. However section 127 (4) defines husband and wife and states:
“(4) In this section husband and wife mean respectively the husband and wife of a marriage whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.”
3. In the case of Julius Mwita Range vs Republic [2003] eKLR the Court of Appeal held:
“The marriage between the Appellant and Elizabeth was a marriage covered by section 127 (4) and Elizabeth was in law still the wife of Appellant not withstanding that they were living separately. She was competent witness but could not be called as witness upon application of Appellant who was a person charged. She was called by prosecution and this was not proper as that was making her a compellable witness.
The defence did not apply for her to be called nor did defence apply for her to proceed with her evidence now that she had been called and was thus made available......”
4. In our instant case, it is not denied by the prosecution that the accused is in polygamous marriage with witness PW1 Mohamed Ali who was stood down.
5. Various witnesses have referred to the accused as the wife of the Mohamed Ali including PW8 NM 11 year old daughter of deceased and the Mohamed Ali who referred to Act as, “mama mdogo.” Step mother.
6. In sum the witness unless on application of the accused, he cannot therefore testify against the accused as their marriage subsist and he is her husband unless and until their marriage is lawfully dissolved.
7. Orders accordingly.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 23RD DAY OF JANUARY, 2020.
...............................
C. KARIUKI
JUDGE