Criminal Case 29 of 2020

Case Metadata
Case Number:	Criminal Case 29 of 2020
Parties:	Republic v Osalo
Date Delivered:	03 Oct 2022
Case Class:
Court:
Case Action:	Ruling
Judge(s):	Kiarie Waweru Kiarie
Citation:	Republic v Osalo (Criminal Case 29 of 2020) [2022] KEHC 13359 (KLR) (3 October 2022) (Ruling)
Court Division:	Criminal
County:	Homa Bay
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Republic v Osalo (Criminal Case 29 of 2020) [2022] KEHC 13359 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13359 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 29 of 2020

KW Kiarie, J

October 3, 2022

Between

Republic

Prosecutor

and

Oscar Otieno Osalo

Accused

Ruling

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:A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

3.Section 25A(1) of the Evidence Act has prescribes persons who can take a confession from a suspect in the following terms:A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.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:Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

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 3^RD DAY OF OCTOBER, 2022KIARIE WAWERU KIARIEJUDGE