1.During cross examination of the accused on 9th June 2022, by Mr. Mwangi, Prosecution Counsel, Mr. Khayumbi raised on the basis objection to the accused being questioned on the contents of a statement; that had been recorded under enquiry, on the basis that what the accused had told the police under inquiry differed from his statement to the court under oath in examination in chief. Mr. Khayumbi argued that the person who recorded that statement from the accused did not attended court to be cross examined on the circumstances under which he or she recorded the statement. He asserted that the accused should be cross-examined only on the basis of what he informed the court.
2.Mr. Mwangi responded by arguing that the accused had not denied making the statement, and, therefore, he could not run away from its contents.
3.It is trite law that a statement by an accused person is not admissible against him unless it is proved to have been voluntary. The procedure is that the state must first seek to have the statement put in evidence as a part of the case against the accused person. Unless it is put in evidence and admitted to the record by the court, the accused cannot be cross-examined on it. The defence has the liberty to object to it, on grounds that it is not obtained voluntarily, whereupon the court conducts a “trial within a trial,” and delivers a ruling to determine voluntariness and admissibility. That should be done even before the statement is marked for identification. See Musili Tulo vs. Republic  eKLR (Waki, Ouko & Mohammed JJA), Republic vs. Samuel Ombima Buruk  eKLR (JR Karanja J) and Republic vs. Gachanja & others  eKLR (Mbongoli Mbagha J)
4.The statement that Mr. Mwangi was cross-examining the accused on was never admitted as part of the evidence against the accused person, when the prosecution presented its case. It is, therefore, not on record. It is not available for the prosecution to confront the accused with its contents. If the prosecution intended to challenge the accused on its contents, it should have sought to produce it as evidence in their case, so, that they could challenge the accused on its contents at the trial. The prosecution did not do that, and it lost the opportunity. It cannot, at the stage, go back to it. It is not material that this court can pay any regard to.
5.The objection by Mr. Khayumbi is upheld. Mr. Mwangi, or whoever shall continue to cross-examine the accused, is hereby barred from making any reference to the statement made by the accused on inquiry.