Director of Public Prosecutions v Onyango [2022] KEHC 16135 (KLR) | Refractory Witnesses | Esheria

Director of Public Prosecutions v Onyango [2022] KEHC 16135 (KLR)

Full Case Text

Director of Public Prosecutions v Onyango (Criminal Case 9 of 2020) [2022] KEHC 16135 (KLR) (Crim) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16135 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 9 of 2020

DO Ogembo, J

December 7, 2022

Between

Director of Public Prosecutions

Republic

and

Washington Ochieng Onyango

Accused

Ruling

1. The prosecution has applied under section 152 of the Criminal Procedure Codeto have this witness (PW10) be declared a refractory witness. The application is grounded on the submissions that the witness has disowned the statements he made with the police, particularly, his further statement. The prosecution has consequently urged that the court do order that this witness be placed in custody for a period of 8 days.

2. The counsel for the accused has vehemently opposed this application. This court, however, got the impression that the submissions made by counsel were more relevant to an application to have the witness be declared hostile, and not the application before the court. I shall not dwell on the same.

3. Section 152(1) of the Criminal Procedure Code, under which this application has been brought provides;-“Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence.a.Refuses to be sworn, orb.Having been sworn, refuses to answer any question put to him, orc.Refuses or neglects to produce any document or thing which he is required to produce, ord.Refuses to sign his disposition, Without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for a period not exceeding 8 days, and may in the meantime commit that person to prison for the same period, unless he sooner consents to do what is required of him.”

4. In our instant case, the witness has answered all the questions put across to him by the prosecution after taking the oath. He has not refused to produce any documents required of him. Neither has he refused to sign any of his disposition.

5. In the circumstances, I do not find any merit in the prosecution application to have this witness be declared a refractory witness. I accordingly dismiss this application of the prosecution. Orders accordingly.

D. O. OGEMBOJUDGE7THDECEMBER 2022.