High Court 19359 of 2025

Jurisdiction – jurisdiction of the High Court – jurisdiction to issue witness protection orders - whether the High Court had jurisdiction to issue witness protection orders in respect of witnesses in a pending criminal trial before a subordinate court - Witness Protection Act, Cap. 79, section16. Brief facts The application sought witness protection orders in respect of two witnesses in a criminal case pending before the Principal Magistrate’s Court. The accused was charged with the ofience of defilement with an alternative charge of committing an indecent act with a child. The applicant deponed that the Witness Protection Agency (the Agency) had received a self-referral application for protection from the victim’s mother on behalf of herself and her minor child, who was the victim in the criminal proceedings. Upon conducting a risk assessment, the Agency established that the minor victim and her mother, both key prosecution witnesses, were exposed to grave danger arising from their decision to testify. It was averred that the accused, who was the boyfriend of the victim’s mother and a father figure to the minor, was out on bond. Further, it was alleged that the accused and/or his sympathisers within the community had made several reported attempts to intimidate and dissuade the witnesses from pursuing the case. The Agency concluded that there existed a real risk to the life and safety of the witnesses and that they had agreed to testify only upon assurance of court-sanctioned protection measures. The applicant therefore sought orders for concealment of the witnesses’ identities, in camera proceedings, use of video link technology, redaction of identifying information from court records, use of pseudonyms, and secure handling of the miscellaneous application file. Issues i. Whether concealment of the identities of witnesses to protect them was justifiable and not a violation of the right to fair trial. ii. Whether witness protection orders derogated the constitutional guarantees of a fair trial. iii. Whether the High Court had jurisdiction to issue witness protection orders in respect of witnesses in a pending criminal trial before a subordinate court. Held 1. Witness protection was a constitutional imperative and a key tool in the administration of justice for the simple reason that it guaranteed the protection of vulnerable witnesses who may be averse to testifying owing to potential risk or dangers posed by an accused person in a criminal trial or their proxies. 2. Notwithstanding the right to fair hearing as provided for under article 50 of the Constitution and which ensured that everyone had a right to a fair and public hearing in legal disputes, the presumption of innocence on the part of an accused person, the right to counsel, timely trial, silence and access to evidence, inter alia, witness protection orders existed to ensure fairness and integrity of a trial and in no way derogate the constitutional guarantees of a fair trial. 3. Witness protection orders were guided by the provisions of the Witness Protection Act. The High Court had the power to make a witness protection order by taking into consideration certain factors which were stated in section 16 of the Act. The gist of the instant application was the quest to guarantee the security and safety of a minor victim of an ofience and the mother who were key witnesses in the subject trial. That was a major consideration in the determination of whether or not a protection order was necessary and deserved. 4. The need to conceal the identity of a witness found support in the Constitution and the law. Where the concealing of the identity of a witness was necessary in a free and democratic society to protect witnesses or vulnerable persons, it was a justifiable measure, and therefore, not a violation of right to fair trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 2

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5. The court factored in the relationship between the victim and the mother with the accused. There had been actual threats made to the victim and witness. The court had due regard to the accessibility of the victim and the mother by the accused or his proxies who lived in the same community. The threshold for the grant of protection orders had been achieved. 6. The life and safety of the victim and the witness were endangered and the orders sought were necessary and merited for the protection of the victim and the parent since there was a clear demonstration of a real risk of harm to them and the likelihood that they may not volunteer to testify in support of the prosecution’s case thus hampering the administration of justice. Application allowed. Orders i. Protection orders for the identity of the two protected witnesses in Criminal Case CF No. SO E005/2025, Police Case CR No. xxx/99/2025, (Republic v JI) before the PM’s Court at XXX Court to be concealed and to testify in camera/ closed session and through video link technology which link shall be specially generated by the court for the particular hearing of the protected witnesses were issued. ii. Protection orders to allow for the redaction of any identifying information from the witness’ statements in Criminal Case CF No. SO E005/2025, Police Case CR No. xxx/99/2025, (Republic v JI) before the PM’s Court at XXX Court and related documentation, and further, that such identifying information be expunged/ be anonymized from the court’s public records during publishing of the judgement and that order was thereby issued. iii. Protection orders for the identities of the two protected witnesses, in Criminal Case CF No. SO E005/2025, Police Case CR No. xxx/99/2025, (Republic v JI) before the PM’s Court at XXX Court, to be concealed and to give testimony using pseudonyms were issued. iv. The protection orders as above be filed in the respective court file, in Criminal Case CF No. SO E005/2025, Police Case CR No. xxx/99/2025, (Republic v JI) before the PM’s Court at XXX Court, or any subsequent court file which should also be brought to the attention of the Magistrate hearing the matter. v. The miscellaneous application file germane to the instant application was to be kept under lock and key and be accessible only to the court and the Witness Protection Agency. vi. No orders as to costs. Citations Cases Kenya In the Matter of Application for orders for Witness Protection Miscellaneous Case 30 of 2014; [2014] KEHC 8098 (KLR) — Applied Statutes Kenya 1. Constitution of Kenya articles 50, 50(2)(j) — (Interpreted) 2. Sexual Ofiences Act (Cap 63A) sections 8(1)(2); 11(1) — (Interpreted) 3. Witness Protection Act (Cap 79) section 4(3)(a)(b)(c)(d)(e) — Interpreted Advocates None mentioned RULING 1. By way of an application dated December 5, 2025, the applicant moved this court for orders that; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 3

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2. 1. That this Honourable court be pleased to grant witness protection orders for the identity of the 2 protected witnesses in Criminal Case CF No [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court to be concealed and to testify in camera/ closed session and through video link technology which link shall be specially generated by the court for the particular hearing of the protected witnesses. 2. That this Honourable court be pleased to grant witness protection orders to allow for the redaction of any identifying information from the witness’ statements in Criminal Case CF No SO [Particulars Withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court and related documentation, and further, that such identifying information be expunged/ be anonymized from the Court’s public records during publishing of the Judgement and this order. 3. That this Honourable court be pleased to grant witness protection orders for the identities of the two protected witnesses, in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court, to be concealed and to give testimony using pseudonyms. 4. That the witness protection order be filed in the respective court file, in Criminal Case CF No So [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court, or any subsequent court file which should also be brought to the attention of the Magistrate hearing the matter. 5. That the Miscellaneous Application file germane to this application be kept under lock and key and be accessible only to the Court and the Witness Protection Agency. 6. That this Honourable court be pleased to grant any such orders it deems fit in the circumstances. The application is based on the grounds that; 1. The applicant is at advanced stages processing the protection two crucial witnesses in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court. 2. The witnesses are exposed to grave danger as a result of the evidence they have agreed to give in support of the prosecution case which has generated wide public interest and heightened tension. 3. That unless protection orders are granted, there is a high risk of the crucial witnesses being threatened, intimidated and or harmed. 4. That it is in public interest and justice that protection orders be issued to protect the witness and parent. 3. The application finds support in the affidavit of EE a Protection Officer attached to Witness Protection Agency (WPA), who depones, inter alia, that his duties involve receiving applications for witness protection, conducting risk assessments and making risk assessment reports. 4. That on 12th October 2025, the Agency received a self-application email for witness protection of a child victim witness and mother from the victim’s mother, in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 4

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5. That upon receipt of the referral the agency conducted a risk assessment and established that the one of the referred witnesses is a minor and the victim of the ofience and the parent who is also a witness in Criminal Case CF No So [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court, and that they are in grave danger as a result of the evidence they agreed to give in support of the prosecution case. 6. Further, that upon inquiry he also established that known sympathisers of the accused person have made several reported attempts of intimidating the witnesses and dissuading them from pursuing the case. 7. It is deponed that the accused JI is boyfriend of the mother to the victim and father figure of the victim and he is charged in Criminal Case CF No SO [particulars withheld], Police Case CR No[particulars withheld], (Republic vs . JI ) before the PM’s Court at XXX Law Court, with : Defilement contrary to section 8(1) as read with section 8(2)of the Sexual Offences Act No 3 of 2006 and an alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 8. It is stated that upon further inquiry it was established that the accused persons and or their sympathisers have made several reported attempts to intimidate the witnesses and to dissuade the victim’s mother from pursuing justice in the said criminal case of her daughter. 9. Further, that, upon risk assessment the above facts confirm that the accused person and sympathisers within the community may harm the protected witnesses if they get access adding that the accused is the accused person is currently out on free bond. 10. That in light of the serious charges facing the accused person it was established that the 2 witnesses fear testifying against the accused person. 11. E adds that the 2 witnesses have agreed to testify on the assurance of their safety and use of court protection measures during the hearing urging that in light of the risk facing the witnesses, it is just and proper that witness protection be provided to ensure their safety and support to the prosecution case. 12. I have had occasion to consider the application, the grounds raised and the facts as set out in the supporting affidavit of EE. Of determination is whether the applicant meets the legal threshold for the grant of the protection orders sought. 13. Witness protection is a constitutional imperative and a key tool in the administration of justice for the simple reason that it guarantees the protection of vulnerable witnesses who may be averse to testifying owing to potential risk or dangers posed by an accused person in a criminal trial or their proxies. 14. Notwithstanding the right to fair hearing as provided for under article 50 of the Constitution and which ensures that everyone has a right to a fair and public hearing in legal disputes, the presumption of innocence on the part of an accused person, the right to counsel, timely trial, silence and access to evidence, inter alia, witness protection orders exist to ensure fairness and integrity of a trial and in no way derogate the constitutional guarantees of a fair trial. 15. Witness protection orders are guided by the provisions of the Witness Protection Act. The objects of the Act as stated in its preamble are; “ An Act of Parliament to provide for the protection of witnesses in criminal cases and other proceedings to establish a Witness Protection Agency and provide for its powers, functions, management and administration, and for connected purposes” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 5

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16. Section 4 (3) of the Witness Protection Act provides :“ (3) (8) The Agency may request the courts, in support of the programme, to implement protection measures during court proceedings which measures may include but not be limited to— a. holding in camera or closed sessions; b. the use of pseudonyms; c. the reduction of identifying information; d. the use of video link; or e. employing measures to obscure or distort the identity of the witness.” The High Court has the power to make a witness protection order by taking into consideration certain factors which are stated in Section 16 of the said Act as follows: “ The High Court may make a witness protection order if it is satisfied thata. 17. the person named in the application as a witnessi. was a witness to or has knowledge of an ofience and is or has been a witness in criminal proceedings relating to the ofience; or ii. is a person who, because of his relationship to or association with a person to whom subparagraph (i) applies, may require protection or other assistance under this Act; b. the life or safety of the person may be endangered as a result of his being a witness; c. a memorandum of understanding has been entered into by the witness in accordance with section 7; and d. the person is likely to comply with the memorandum of understanding.” The gist of the present application is the quest to guarantee the security and safety of a minor victim of an ofience and the mother who are key witnesses in the subject trial. This is a major consideration in the determination of whether or not a protection order is necessary and deserved. Section 16(b) puts it in the following terms; where…the life or safety of the person may be endangered as a result of his being a witness; 18. The need to conceal the identity of a witness, too, finds support in the Constitution and the law. Where the concealing of the identity of a witness is necessary in a free and democratic society to protect https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 6

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witnesses or vulnerable persons, it is a justifiable measure, and therefore, not a violation of right to fair trial. 19. As aptly put by Lenaola J (as he was then) in the case of In the Matter of Application for orders for Witness Protection [2014] eKLR ; “ The redacting of Witness Statements to exclude the witnesses' personal details such as the name, address and other personal particulars does not in my view amount to a contravention of the provisions of article 50(2)(j). The Accused persons will have the substance of the evidence to be adduced at the trial which is the tenet of protection accorded by this provision”. 20. I have factored in the relationship between the victim and the mother with the Accused. I have evaluated the affidavit evidence and am persuaded that there have been actual threats made to the victim and witness. I have had due regard to the accessibility of the victim and the mother by the Accused or his proxies who live in the same community. Am satisfied that the threshold for the grant of protection orders has been achieved. 21. On the material before court am satisfied that the life and safety of the victim and the witness are endangered and the orders sought are necessary and merited for the protection of the victim and the parent since there is a clear demonstration of a real risk of harm to them and the likelihood that they may not volunteer to testify in support of the prosecution’s case thus hampering the administration of justice. 22. With the result that the application herein has merit and is allowed. I make the following orders; 1. Protection orders for the identity of the 2 protected witnesses in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court to be concealed and to testify in camera/ closed session and through video link technology which link shall be specially generated by the court for the particular hearing of the protected witnesses be and are hereby issued. 2. Protection orders to allow for the redaction of any identifying information from the witness’ statements in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court and related documentation, and further, that such identifying information be expunged/ be anonymized from the Court’s public records during publishing of the Judgement and this order be and is hereby issued. 3. Protection orders for the identities of the two protected witnesses, in Criminal Case CF No SO [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court, to be concealed and to give testimony using pseudonyms be and is hereby issued. 4. The Protection orders as above be filed in the respective court file, in Criminal Case CF No [particulars withheld], Police Case CR No [particulars withheld], (Republic v JI ) before the PM’s Court at XXX Law Court, or any subsequent court file which should also be brought to the attention of the Magistrate hearing the matter. 5. The Miscellaneous Application file germane to this application be kept under lock and key and be accessible only to the Court and the Witness Protection Agency. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 7

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6. No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF DECEMBER, 2025. A. K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19359/eng@2025-12-18 8

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