Republic v Lochuch & 2 others (Criminal Case 316 of 2013) [2015] KEMC 3 (KLR)

4. The prosecution's case is that the 2 complainants herein, PW1, Nicholas Gichohi Ngumo, and PW3, John Gathii Mwaura, were on the night of 22.02.2013 riding back home after having had some alcoholic drinks at a bar within Nyahururu town. They were using the motorcycle herein which belonged to PW3, John Gathii Mwaura. They slowed down on reaching a certain diversion heading to their estate whey were attacked by some 4 men who were armed with the weapons indicated in the particulars of the charge herein. The men robbed them of their properties and also the motor cycle. They then went and reported the incident to Nyahururu police station. They were unable to identify or recognise any of the attackers because, according to PW1, Nicholas Gichohi Ngumo, it was dark at the time, and also the efiect of alcohol intoxications. 5. Meanwhile during that period, PW2, NO. XXX PC. Kennedy Onyango Otieno, from the Special Crimes Prevention Unit of the CID Headquarters, was on assignment at the Nyahururu Divisional Criminal Investigations Department. He was assisting in investigations of the various serious crimes that had been reported at Nyahururu during and around that period. He therefore also joined in the investigations of the robbery report herein. His evidence in court started with the arrest of the 1st defendant herein. He stated that they arrested him from his house at Co-site estate on the night of 23.02.2013 at around 10.00pm. That they then interrogated him. In the interrogations, the 1st defendant confessed to them in the presence of his wife. That the confession was taken by an appropriate oficer who was sent to them by the Divisional Criminal Investigations Oficer. That the 1st defendant mentioned the 3rd defendant's name and one Kipchoge as his accomplices. That the 1st defendant went further to state to them that they rode the motor-cycle herein with that Kipchoge up to Nakuru where they took it to the 2nd defendant herein who bought it from them. 6. The following day, PW2, NO. XXX PC Kennedy Onyango Otieno, travelled to Bondeni area of Nakuru with the 1st defendant who showed them where the 2nd defendant operates a miraa shop. With the assistance of an informer, they were able to get the 2nd defendant in the evening of that day. They immediately arrested him. It is the further evidence of PW2, NO. XXX PC. Kennedy Onyango Otieno, that upon his arrest, the 2nd defendant took them to where the motor cycle herein was parked along one of the streets in the town. PW2, NO. XXX PC Kennedy Onyango Otieno then handed over the 1st and 2nd defendants to the DCIO. 7. The DCIO, then assigned the case to PW4, NO. XXX CPL. David Njuki, to investigate. All the defendants herein were then in police custody, including the 3rd defendant. PW4, NO. XXX CPL. David Njuki travelled to Nakuru Police Station where the motor cycle was, collected it and brought it to Nyahururu police station. 8. On 26.02.2013, the complainants herein, PW1, Nicholas Gichohi Ngumo, and PW3, John Gathii Mwaura, were called to the police station. They identified the motor cycle to be the one that was stolen from them in the robbery herein. The motorcycle was then photographed from various angles. 9. PW4, NO. XXX CPL. David Njuki, produced the purchase receipt of the motor cycle as PEXH. No.2, the photographs as PEXH. Nos. 3A, 3B and 3C. Also the Certificate of the Scene of Crime oficer who took the photographs as PEXH. No. 4. He then charged the 3 defendants herein, whom he had not known or met before, with the charges herein. 10. In cross-examination, he also confirmed that someone else was arrested with the motor cycle herein but was released in circumstances that he, as the investigating oficer, could not explain, or were not known to him. He produced a letter from the DCIO dated 27.02.2013 as DEXH. NO. 1, while explaining himself on the controversy. 11. The prosecutions then closed their case on 09.06.2014 after PW4's evidence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 2

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12. There were brief submissions from the 2nd and 3rd defendants herein on no case to answer. They mainly submitted that none of the complainant identified them during the attack. Also that the person who was found with the motor cycle herein was controversially released as per PW4's evidence. That there was no evidence that the vehicle was parked by the 2nd defendant at the place where it was found. That there is no clear evidence of how the 3rd defendant was arrested and finally connected with the charges herein. 13. The prosecutor, IP Omweri, had no reply. 14. The only witnesses at the scene of the robbery attacked were the two complainants herein. None of them saw or identify the defendants herein attacked them. The prosecution is simply relying on the confession by the 1st defendant herein. First of all, we are not told of the circumstances that led them to the 1st defendant. The evidence for the prosecutions is, however, mainly that it is the 1st defendant who implicated the other defendants herein in a confession that, according to PW2, was properly extracted. 15. The laws governing confessions and their admissibility are clearly stated in sections 25 and 25A of the Evidence Act as follows: 25. Confessions generally inadmissible 1. 25A. 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. Confessions generally inadmissible 1. 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 oficer (other than the investigating oficer), being an oficer not below the rank of Chief Inspector of Police, and a third party of the person’s choice. 2. The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession where the confession is not made in court (Emphasis is mine). 16. For sometimes there used to be a confusion in our criminal justice system on the meaning of 'the court' as used in the above provisions. The investigating oficers used to arraign suspects in magistrates chambers during investigations so as to have the confessions recorded. The magistrates could then be summoned to appear as prosecution witnesses before another court during the trial. Some trial courts still went ahead to exclude such confessions as extra-judicial arguing that they were still not given before the trial court and that section 25A of the Evidence Act contempleted a situation where the confessions were to be made before the trial court, during the trial, and not before another court during investigations. 17. The confusion appears to have been solved in 1999 when the then Attorney-General made and gazetted the rules contempleted in subsection 2 hereinabove which were to allow the police to extract the confessions during investigations without involving the court. There was a requirement in the rules that they be prominently displayed for the public and the accused persons at every police stations and units ( CID centres and ofices, police posts and patrol bases); including Nyahururu Police Station and https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 3

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CID ofice. For the benefit of the prosecution and the concerned and interested parties herein, I do reproduce the rules hereunder:The Evidence (Out of Court Confessions) Rules, 2009 1. Citation These Rules may be cited as the Evidence (Out of Court Confessions) Rules, 2009. 2. Interpretation. In these Rules, except where the context otherwise requires – “Act” means the Evidence Act; “electronic recording media” includes any removable or physical audio recording medium; and “recording oficer” means a police oficer (other than the investigating oficer) who is not below the rank of Chief Inspector of Police. 3. Availability of Rules. These Rules shall be readily availed by the Attorney-General for reference by police oficers, accused persons and members of the public and in particular, shall – (a) be displayed prominently at every police station and police unit; (b) upon request, be made available by a police oficer, in a form of a copy, to an accused person. 4. Rights of accused person. (1) Where an accused person intimates to the police that he wishes to make a confession, the recording oficer shall take charge of the accused person and shall ensure that the accused person – (a) has stated his preferred language of communication; (b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English; (c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment; (d) is informed of his right to have legal representation of his own choice; (e) is not deprived of food, water or sleep; (f) has his duration, including date and time of arrest and detention in police custody, established and recorded; (g) has his medical complaint, if any, adequately addressed; (h) is availed appropriate communication facilities; and (i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5. (2) The recording oficer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured. (3) The recording oficer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording oficer shall record the third party’s particulars and relationship to the accused person. 5. Caution to the accused person. (1) The recording oficer shall caution the accused person in the following terms and shall record his response: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.” (2) While recording the confession, the recording oficer shall ensure, and record compliance, that where the confession session is prolonged, the session included rest and relaxation periods. (3) The recording oficer shall ensure that the confession is recorded at the same time it is made and shall record the date and time of commencement of the confession session and the place where the confession is recorded. 6. Electronic recording media. (1) Subject to paragraph (2), the recording oficer may record the confession of an accused person on electronic recording media. (2) Where the recording https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 4

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oficer records the confession of an accused person on the electronic recording media – (a) the accused person shall be notified of such recording and of his right to object and the notification and any response thereto by the accused person, preferably on electronic media; and (b) the recording shall be in the open. (3) In the event of failure of the electronic recording media, the recording oficer may – (a) opt to replace the equipment and record the failure upon the resumption of the confession session; or (b) record in waiting. (4) Upon electronic recording, the first recording which shall be the master recording, shall be marked with a reference number and sealed in the accused person’s presence while a second recording will be used as a working copy by the prosecuting authority during the period of exercise of prosecutorial discretion. (5) The recording oficer shall produce the master electronic record to the court and may be requested by the court to prove its authenticity. (6) A copy of the recording shall be given to the accused person, upon request. 7. Confession recorded in writing. Where the confession is to be recorded in writing, the recording oficer shall inform the accused person of his option to write his own statement in his preferred language or to have the recording oficer record it. 8. Clarification of confessions by accused person. At the conclusion of the recording, the accused person shall be ofiered the opportunity to clarify anything he has said and to add anything he may wish. 9. Certificate of confession. The recording oficer shall ensure that the written confession or electronic recording media contains the following certificate at the end of the confession, in the original language of the accused person: “I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.” 10. Confession not recorded in English or Kiswahili. In the case of a confession not recorded in English or Kiswahili, the recording oficer shall ensure that it is translated into English or Kiswahili. 11. Safety of recorded confession. The master recording or the signed confession statement shall be kept securely and their movements accounted for on the same basis as material which may be used for evidential purposes, as further elaborated in the Force standing orders issued under section 5 of the Police Act. 12. Accused person arrested outside Kenya. Where an accused person is arrested outside of the geographical boundaries of Kenya for the purpose of being arraigned in a Kenyan court, and, prior to arrival in Kenya, the accused person opts to record a confession – (a) the arresting authority shall record the confession if the governing procedures for obtaining of confessions in the arresting jurisdiction are in substantial compliance with these Rules; and (b) the trial court shall be the final determining judicial body to adjudicate on the admissibility of confession so obtained. 13. Recording oficer to be a witness. The recording oficer, having informed himself of section 26 the Act, shall be the proper prosecution witness to prove to the court beyond reasonable doubt that the Rules were complied with. 14. Certification by recording oficer. The recording oficer shall certify, in writing, that a confession was not obtained as a result of any inducement, threat or promise having reference to the charge against the accused person. 15. Language of publication. These Rules shall be translated and published in Kiswahili in addition to the oficial copy published in English. Made the 6th March, 2009 https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 5

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S.A. Wako Attorney-General 1 18. As for confessions made to a police oficer; section 29 of the Evidence Act provides that no such confessions shall be proved against a person accused of any ofience unless such police oficer is of or above the rank of, or a rank equivalent to, inspector (acting Inspector); or an administrative oficer holding first or second class magisterial powers and acting in the capacity of a police oficer. 19. Applying the above provisions herein, I do find no evidence of an admissible confession that PW2 claims was extracted from the 1st defendant herein that implicated himself and his other co-accused herein. The confession, if in written or electronic form, was supposed to be produced in court as evidence of the same. None was produced. The presumption is therefore that none existed. If there was such a confession properly extracted as claimed, then the best witness who was to rely on the same was not PW2, who insisted that he was just but an arresting oficer, but PW4, a neutral police witnesses who came to testify in court as the Investigating Oficer. I do therefore find that if there was any confession herein, then it was an oral one made to PW2, in the course of interrogations and hence did not comply with the provisions of section 25A of the Evidence Act as read with The Evidence (Out of Court Confessions) Rules, 2009. 20. Applying the provisions of section 29 of the Evidence Act, the purported oral confession was made to PW2, a Police Constable and as such cannot be used against the 1st defendant herein. That confession is also inadmissible within the meaning of sections 25 and 25A of the Evidence Act as it was not made in court, or a police oficer of the rank of a Chief Inspector of police. I do wonder why PW2, was in a hurry to have the 1st defendant accompany him to Nakuru without having his confession extracted by a competent oficer. This is therefore a case of a bungled investigations. 21. The whole process that led to the arrest of the 2nd and 3rd defendants herein is therefore tainted with illegality. PW2 confirmed that it is the confession by the 1st defendant, which I have already found to be inadmissible, where he is said to have implicated all the defendants herein; and therefore was used to arrest and charge them with the ofiences herein. Having found the confession to be inadmissible, and none of the eye-witnesses herein having identified the defendants herein at the scene, I do therefore find no other admissible evidence that might entitle me convict the defendants herein should they fail to give a reasonable explanation when called upon to make their defence. 22. The motor cycle herein was also not found in the possession of the 2nd defendant. Possession of a property, to my understanding, involves having a degree of physical control over the property, with the person in control knowing that the property is in his control.1 23. In this case, it was confirmed that the motor cycle herein was found while parked along a certain unnamed street and in the absence of any evidence to prove the same, it cannot be said that the 2nd defendant was having a degree of physical control over it; or that he knew that the motor cycle was in his control. Moreover, there was the evidence from PW4, that the motor cycle was found while in possession of another person who was controversially released. He, the Investigating Oficer, could not explain the circumstances under which the suspect was released. With these kinds of evidence and controversies, it cannot be said with a degree of certainty that the 2nd defendant herein was in possession of the motor cycle herein. 24. That process when the 2nd defendant was taking the police oficers herein to the parking yard where the motor cycle was found also amounts to a confession by the 2nd defendant and the evidence of the See WARNER VRS METROPOLITAN POLICE COMMISSIONER (1969) AC 256 and REPUBLIC VRS CHATWOOD (1980) 1ALL ER 467. https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 6

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same is inadmissible unless the provisions of sections 25, 25A and 29 of the Evidence Act are complied with. 25. The evidence against the 3rd defendant herein was mainly the inadmissible confession by the 1st defendant. Having found the confession to be inadmissible, I do therefore find no evidence to connect the 3rd defendant with the ofiences herein. 26. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. As already stated hereinabove the main issue at this stage is whether the prosecution, in discharging this burden, has established a prima facie case that requires me to call upon the defendant herein to make their defence as required by section 211 of the Criminal Procedure Code. 27. The case of Republic vrs Kennedy Otieno & 6 Others (1998) eKLR2, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given.3 28. The High Court in Republic vrs Kennedy Otieno & 6 Others, supra, addressed the point as follows: It must be remembered that at the close of prosecution case, an accused has a right to keep silent in his defence. An accused person is brought to court by the prosecution. It is upon the prosecution to prove a case against an accused person beyond reasonable doubt. An accused person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 29. Guided by the above decision, and having found no admissible evidence disclosed by the prosecution; I do hereby find that no prima facie case has been disclosed to warrant the defendants herein to be called upon to make their defence in all the counts. I do therefore dismiss all the charges against them herein under section 210 of the Criminal Procedure Code. 30. All the defendants are hereby acquitted of the ofiences of Robbery with Violence c/s 296(2) of the Penal Code as charged in Counts 1 and 2; and the 2nd Defendant also acquitted of the ofience of Handling Stolen Goods c/s 322(2) of the Penal Code as charged in the Alternative Count. The 1st defendant should therefore be immediately set at liberty unless otherwise lawfully held. 31. This ruling be served on all the oficers Commanding Police Divisions (OCPDs) and the Divisional Criminal Investigations Oficers (DCIOs) serving within Nyahururu Law Courts' jurisdiction. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS06TH DAY OF JANUARY, 2015 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Kangethe Court prosecutor: CIP Masinde 1st Defendant: Present 2nd Defendant: Present 2 HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) CRIMINAL CASE 1 OF 1998 3 See also RAMANLAL T. BHATT VRS REPUBLIC (1957) E.A. 332 https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 7

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3rd Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/3/eng@2015-01-06 8

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