https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11912

In re Witness Protection Agency (Criminal Miscellaneous Application E044 of 2026) [2026] KEHC 11912 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11912 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E044 of 2026 RN Nyakundi, J July 30, 2026 IN THE MATTER OF ARTICLE 50 OF THE CONSTITUTION IN THE MATTER OF CHILDREN ACT 2022 IN THE MATTER OF WITNESS PROTECTION ACT IN THE MATTER OF THE WITNESS PROTECTION RULES, 2015 AND IN THE MATTER OF APPLICATION FOR ORDERS FOR WITNESS PROTECTION In the matter of Witness Protection Agency Applicant Ruling 1.Before this Court is a Chamber Summons brought under Article 50 of the Constitution, Section 4(3) (a) (b) (c) and Section 16 of the Witness Protection Act Chapter 79 Laws of Kenya, Regulation 5(6) of the Witness Protection Regulations, 2011. Rules 4,5,9 and 13 of the Witness Protection Rules 2015) and all other enabling laws seeking protection orders. The Application was supported by an affidavit dated 28th July 2026. Decision 1.In consonant with fair trial rights under Article 50 of the Constitution and enabling statutory framework governing witness protection, orders so as to balance witness safety, security and confidence was enacted in the form of witness protection act accompanied with the witness protection rules. This legislation forms the foundation upon which the governance structure to apply to the court for orders on witness protection. 2.For purposes of this legislation a witness is defined as a person with information that is crucial to judicial proceedings including criminal proceedings. Broadly, in any proceedings before a court of law within the law of Evidence Act there are three categories of witnesses who may require protection;a.Justice collaborators – These are people including convicted offenders, facing related criminal charges who decided to cooperate the prosecutors by giving testimonyb.Victim witnesses; These are witnesses who are direct victims of the crime undergoing prosecutionc.Other types of witnesses. These include expert witnesses who testify because of their specialist knowledge such as forensic experts. Other witnesses could be police officers or insider witnesses, who may or may not have criminal charges against them despite their close affiliation to the accused, or eye witnesses to the criminal activities under question. 3.This legislation involves witness protection which is a covet process that involves various measures taken by the implementing agency which may include but not exhaustive the following;i.Concealing the identity of a witness through the following Facial concealment and voice distortion Closed trials and closed-circuit television Giving witnesses pseudonyms or referring to them using numbers Expunging witness names and other information that may allow them to be identified from records. ii.Admission to a witness protection programme, which may include changing a witness’s identity and relocating him or her, either temporarily or permanently. 4.The core legal principles in which exercise of discretion by the court is navigated within the scope of the following conditions although this is not an exhaustive list;a.Necessity and Proportionality: Protective measures must be strictly necessary in a free and democratic society to shield vulnerable witnesses or prevent real danger from threatsb.Fair Trial Rights: Measures such as anonymity or testify via video link must not prejudice or unfairly impede the accused person’s ability to test evidence or conduct a defense.c.Public Interest: Courts weigh the gravity of the offense, the public interest in effective prosecution, and documented threat assessments against the rights of parties. 5.The interpretation of the Witness Protection Act together with its Rules have been legally oxygenated by the decisions of the court as herein demonstrated;a.In re Application for Orders for Witness Protection [2025] (Kenya Law Ruling) Affirmed that concealing a minor/witness identity under threat is a justifiable limitation that does not violate fair trial provisionsb.In re Application for Orders for Witness Protection [2020] (Kenya Law Ruling) Outlined standard protective orders including in camera testimony, redaction of identifying data and use of pseudonyms.c.In re Application for Orders for Witness Protection [2013] (Kenya Law Ruling) Established procedural approaches for ex parte applications concerning closed sessions and restricted statements. 6.The legal framework of the Act starting with its objectives in the preamble provides as follows;“An Act of Parliament to provide for the protection of witnesses in criminal cases and other proceedings to establish a Witness Protection Agency and provide for its powers, functions, management and administration, and for connected purposes”10.Section 4 (3) of the Witness Protection Act provides :-“(3)The Agency may request the courts, in support of the programme, to implement protection measures during court proceedings which measures may include but not be limited to—(a)holding in camera or closed sessions;(b)the use of pseudonyms;(c)the reduction of identifying information;(d)the use of video link; or(e)employing measures to obscure or distort the identity of the witness.”(8)The High Court has the power to make a witness protection order by taking into consideration certain factors which are stated in Section 16 of the said Act as follows:“The High Court may make a witness protection order by taking into consideration certain factors which are stated in Section 16 of the said Act as follows;“The High Court may make a witness protection order if it is satisfied that –a.the person named in the application as a witness-i.was a witness to or has knowledge of an offence and is or has been a witness in criminal proceedings relating to the offence; orii.is a person who, because of his relationship to or association with a person to whom subparagraph (i) applies, may require protection or other assistance under this Act;iii.the life or safety of the person may be endangered as a result of his being a witness;iv.a memorandum of understanding has been entered into by the witness in accordance with section 7; andv.the person is likely to comply with the memorandum of understanding 7.This matter was further discussed by a Judge coordinate in the case of In the Matter of Application for orders for Witness Protection [2014] eKLR with regard to redacting of a witness statement and he opined as follows;The redacting of Witness Statements to exclude the witnesses' personal details such as the name, address and other personal particulars does not in my view amount to a contravention of the provisions of Article 50(2)(j). The Accused persons will have the substance of the evidence to be adduced at the trial which is the tenet of protection accorded by this provision”. 8.The question of witness protection is beyond our domestic jurisdiction for in the arena of international criminal law it is foundation, it is in the treaty provisions, institutional rules of procedure and customarily human rights standards centered in Article 68 of the Rome Statute. In terms of Article 2 (5) and (6) of the Constitution, International Law is part of our sources of law and fortunately Kenya is a signatory to the Rome Statute and therefore in Pari Materia, the principles in equal measure are applicable to this court when making a determination on victims and witness protection in which compelling reasons have been demonstrated such orders ought to issue under the prism of fair trial rights in Article 50 of the Constitution. In this provision, the statute provides as follows on protection of the victims and witnesses and their participation in the criminal proceedings;a.The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.b.As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.c.Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 9.This very same Article like our Witness Protection Act requires the international criminal court to protect their safety, physical and psychological wellbeing, dignity and privacy of victims and witnesses where a necessity has arisen and going further to allow in camera testimonies and use of pseudonym. 10.The other international setting on witness protection globally, can be traced to the following instruments; These include the UN Convention against Corruption, which note the need for witnesses to be protected from acts that may force, threaten or interfere with them. The UNODC’s Model Law on Witness Protection outlines good practices for the implementation of witness protection may also be found in a range of other UN Conventions and declarations as part of the UN’s norms and principles. 11.However, in all these measures, protection measures against witnesses in our legislation must be weighed against the Accused person’s right to a public hearing and to cross examine witnesses whom they are able to positively identify without necessarily identity concealment or distortion. 12.This legislation on witness protection came out of the necessity for the national level, organized crime and economic crimes which fall under the category of corruption cases can be some of the most difficult and complex to investigate and prosecute. The investigating agencies disrupting or dismantling criminal groups requires getting information about actors, activities and financial dealings that can be difficult to obtain because of the secrecy of their operations and because corrupted official are often paid to alert and protect them from such investigations. I acknowledge that the National Police Service provided for under Article 244 and 245 of the Constitution together with the EACC as an independent commission in an unraveling serious crimes committed under the rubric of economic crimes and other security or terrorism offences for them to be investigated adequately, this tool comes in as an enabler to facilitate fair administration of justice. 13.I have reviewed the application and the procedural measure being requested by the applicant and I am satisfied that there is merit to grant orders for witness protection as premised in Clause No. 2, 3, 4, 5, 6 and 7 of the Chamber Summons dated 28th July 2026. It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 30TH DAY OF JULY 2026………………………………HON. R. NYAKUNDIJUDGE