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High CourtOther

Republic vs. [Accused Person] – Ruling on Scope of Cross-Examination

High Court of Kenya
14 October 2020
WMW Musyoka
1,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenya, the defense can cross-examine witnesses on any previous statement, not just those in the official police file.

What this practically means

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Executive summary

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This ruling by the High Court at Kakamega (Musyoka J, 14 October 2020) resolves an interlocutory objection in a criminal trial. Mr. Ikapel, counsel for the accused, began cross-examining PW1, Evans Sylvester Sewe, on a statement the witness had recorded with the DCI at Navakholo Police Station in March 2019. Dr. Malala, watching brief for the victim's family, objected, submitting that the prosecution was founded on the IPOA investigation file, which had replaced the DCI file, and that cross-examination should be confined to the IPOA bundle and to matters raised in examination-in-chief. This position was supported by Mrs. Mbogua for IPOA and, tentatively, by Mr. Mutua for the ODPP. Mr. Ikapel countered that the right of cross-examination is wide, extends to the witness's character, and that no law restricts it to the statements in the prosecution file. Musyoka J examined sections 153 and 154 of the Evidence Act, which permit cross-examination on previous written statements and on questions testing accuracy, veracity, credibility and character. Relying on Republic vs. Cholmondeley and Republic vs. Hillary Mugo Mwendi, the court held that cross-examination must be wide and liberal, is not confined to examination-in-chief or the prosecution bundle, and cannot be limited. The objection was overruled and the defence permitted to cross-examine PW1 on the DCI statement. No costs order was made.

Key legal issues

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01

Scope of cross-examination under sections 153 and 154 of the Evidence Act

Holding

Cross-examination is wide and unlimited; a witness may be questioned on any previous written statement and on matters beyond examination-in-chief, including character and credibility

Reasoning

The court relied on sections 153 and 154 of the Evidence Act, which permit cross-examination on previous written statements and on questions testing accuracy, veracity, credibility and character. It adopted the liberal interpretation in Republic vs. Cholmondeley and Republic vs. Mwendi, holding that restricting cross-examination to the IPOA file would be contrary to the statutory scheme and the adversarial system.

p. 2

Legal principles established

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  • Cross-examination of a witness cannot be limited to the statements in the prosecution file; it may extend to any previous written statement and to the witness's character, veracity and credibility

Court orders

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  1. 1.The objection by Dr. Malala limiting cross-examination to the IPOA file was overruled
  2. 2.The defence is free to cross-examine PW1 on the previously recorded statement
Jurisdiction invoked
Original criminal jurisdiction; Evidence Act, Cap 80, sections 153 and 154

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic vs. [Accused Person] – Ruling on Scope of Cross-Examination", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.