Republic v Osalo (Criminal Case 29 of 2020)  KEHC 13359 (KLR) (3 October 2022) (Ruling)
Neutral citation:  KEHC 13359 (KLR)
Republic of Kenya
Criminal Case 29 of 2020
KW Kiarie, J
October 3, 2022
Oscar Otieno Osalo
1.The prosecution contends that after the accused was arrested on allegation of his involvement in the murder of the deceased in this case, he made a confession. The accused denied that he made a confession and contended that he was forced to sign a document that the OCS wrote.
2.A confession is defined under section 25 of the Evidence Act in the following terms:
3.Section 25A(1) of the Evidence Act has prescribes persons who can take a confession from a suspect in the following terms:In the instant case the officer who purportedly took the alleged confession was a chief inspector of police. He was therefore competent to do so.
4.For any confession to be admitted as evidence, it must strictly observe the rights of an accused person. Article 50(4) of the Constitution provides as follows:
5.The accused has contended that after he was taken to the office of the OCS, the latter made some writings and asked him to sign. When he showed reluctance, he was threatened with dire consequences.
6.After the trial within a trial was ordered, chief inspector Kipkosgei Kandie was not called as a witness to produce documents to support his contention that he informed the accused of his rights and that he elected to make a statement voluntarily. The voluntariness of the statement was therefore nor proved.
7.The evidence of Caren Adhiambo Osalo (PW1) confirmed the contention of the accused that he was taken into an office where other officers other than the OCS and herself were present. She also informed the court that the accused was handcuffed. This offends the requirement of the need to have the maker of a confession left with the officer recording the statement and to be free of handcuffs. This is to ensure that an accused does not feel coerced to make any statement.
8.From the foregoing, I find that the prosecution has not proved that the accused made a confession voluntarily. I therefore sustain the objection to produce the alleged confession as evidence.
DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF OCTOBER, 2022KIARIE WAWERU KIARIEJUDGE