Ndiba v Republic

Court of Appeal, at Nyeri November 15, 1978

Madan, Wambuzi & Law JJA

Criminal Appeal No 24 of 1978

Evidence - statement admitting guilt - statement retracted - allegedly obtained by torture - trial within a trial held – medical evidence of injuries - absence of explanation from prosecution on how and when inflicted - statement subsequently admitted into evidence - no evidence linking the appellant to the offence.

Criminal Law - Murder - undisputed cause of death - lack of evidence linking offence to anyone.

The appellant was convicted of murder. The conviction was based on the evidence that the appellant was arrested on the night of the said murder with stolen cattle and evidence in a statement to the police in which he admitted his guilt. The appellant retracted the statement claiming that he was tortured to make it. In a trial within a trial to decide its admissibility the trial judge found as a fact that the statement was voluntarily made.

The appellant contends that the statement should not have been admitted in evidence.

Held :

1. In the absence of an explanation from the prosecution as to how and when the injuries were inflicted, it is impossible to rule out that this statement was extracted from the appellant by torture and raises doubt that it was a voluntary statement.

2.The retracted statement should not have been admitted in evidence and a conviction based on it cannot in law stand. In the absence of any other sufficient evidence connecting the appellant with the offence of which he was convicted except such a statement, then the conviction cannot stand. Conviction quashed and sentence set aside

Appeal allowed conviction quashed.

Cases

No case referred to.

Statutes

No statute referred to.