Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Abdul Majid Cockar
Janet Muviti Kathuku v Republic  eKLR
Muviti v Republic
Court of Appeal, at Nairobi December 15, 1994
Cockar, Omolo & Tunoi JJ A
Criminal Appeal No 23 of 1992
(Appeal from a conviction and sentence of the High Court of Kenya at Nairobi (Mr Justice Mango) dated 20th December, 1991 in HCCC No 13 of 1988)
Criminal Practice and Procedure – charge and caution statement – investigating officer recording a statement from an accused person – whether statement admissible in evidence.
Criminal Practice and Procedure – extra-judicial statement – accused making a statement admitting the offence after long period in police custody – trial judge admitting statement without seeking explanation about the long period in custody – whether admission was procedural.
The appellant was tried and convicted by the High Court of the offence of murder and sentenced to death.
On appeal it was argued on her behalf that the learned trial judge misdirected himself by admitting an extra judicial statement by the appellant in which she admitted killing the deceased without seeking explanation from the prosecution over her long period in custody before making her statement.
It was further argued that it was improper for the investigating officer to be the same person to record her statement.
1. The fact that a statement had been recorded by an investigation officer in the case was, no doubt, a matter for the trial judge to consider in deciding whether or not to admit the statement in evidence, but the fact, in itself, does not automatically result in the exclusion of the statement from the evidence.
2. Where at the time of taking of plea there appears to be an unusual circumstance such as injury to the accused, or the accused is confused, or there has been inordinate delay in bringing the accused to Court from the date of arrest etc; then an explanation of the circumstances, must form an intergral part of the facts to be stated by the prosecution to the Court.
3. If the statement was taken sixteen or seventeen days after arrest, as happened in this case, then in seeking to prove the voluntary nature of the statement, the prosecution must prove that the length of the period for which the accused was in their custody had no effect on his making the statement.
4. The prosecution offered no explanation at all as to why they kept this appellant in their custody for so long before taking the two statements from her. On that basis, the judge ought to have excluded the statements.
1. Bassan & Wathobia s/o Kiambu v R  EA 521
2. Ndede v Republic  KLR 567
Penal Code (cap 63) section 203
Mr Mbuthia for the Appellant
Miss Ndirangu for the State/Respondent