Republic v Johnson Ireri Njiru [2017] KEHC 2756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL CASE NO. 7 OF 2014

REPUBLIC ……….………...............…….................PROSECUTION

VERSUS

JOHNSON IRERI NJIRU....................................................ACCUSED

R U L I N G

1. This is a ruling on trial within a trial in respect of a    confession recorded from the accused person in this case Johnson Ireri Njiru.  The mini trial was held following objection by the defence against the tendering of the  confession in evidence.

2. The prosecution called two witnesses.  PW1 the Deputy  Officer Commanding Police Division (OCPD), the recording  officer testified that on 17/03/2014, on request of the  Officer Commanding Runyenjes Police Station (OCS), he recorded a confession from the accused person.  The OCS  brought the accused to PW1's office together with two other people who were to the 3rd party representatives of   the accused.

3. PW1 said the OCS left him with the accused and the two    men.  He communicated with the accused in Kiswahili  language and he confessed that he had killed the  deceased who had come to steal from his house.  The statement which was recorded by PW1 for the accused was confirmed as correct by the accused and duly signed  as required by the law.  The two witnesses made and signed their declarations which was followed by PW1's     certification.

4. The evidence of PW2 was that he was one of the two people who witnessed the recording of the confession. The other person was the village elder (sub-area) known  as Faustino Njiru.  PW1 went to the police station and  together with the accused and Faustino, they were  escorted to the office of the Deputy  OCPD where they  were  handed over to him. The OCS  left them there and   the confession was recorded from the accused.  He  testified that he signed the declaration and identified the signature in the statement.

5. The defence did not call any evidence but preferred to file written submissions raising the issue of non-compliance  with the Evidence (Out of Court Confessions) Rules, 2009.

6. The State filed a response to the submissions arguing that  PW1 complied with the rules and that his evidence as to  the voluntariness of the statement was corroborated by  that of PW2.

7. As regards the language used the defence submitted that PW1 did not record whether he inquired from the accused  what language he understood.   PW1 told  the court that  he did the inquiry although did not record the relevant   conversation.

8. Rule 4(1)(a) states that the recording officer shall ensure   that the accused person “has stated his preferred  language of communication”.  The rule does not require that the relevant conversation on inquiry be recorded. PW1 recorded that Kiswahili was the language he used to  communicate with the accused and this was confirmed by  PW2 in his evidence.  I do not find any breach of Rule    4(1(a).

9. It was contended that PW1 did not record the time of  duration and the time of recording the statement, the  time of arrest and period of detention in police custody.  This is the requirement of Rule 4(1)(f) which PW1 admitted  he did not record.  However, the evidence of PW1 and   PW2 which was not controverted was that the accused and the third parties were taken to the office of the recording officer and the statement recorded within the  morning hours from 10. 00 a.m.

10. The rule was designed to safeguard the rights of the accused as to prolonged hours of recording and duration   of incarceration in custody which would otherwise affect the voluntariness of the confession.  In this case there was no complaint from the accused on the issue and no evidence was adduced to controvert that of PW1.  The   alleged breach of the rule has not been satisfied.

11. PW1 said he inquired from the accused whether he   needed representation of a lawyer but did not record the  conversation. Rule 4(1)(d) only requires that the accused be informed of his right.  The failure to record the conversation is not a breach of the rule.  Furthermore the  accused had already chosen two people as third parties to   be present during recording of the statement.

12. The accused was taken to the recording officer by the OCS   and this was confirmed by PW1 and PW2 in their evidence.  The failure to record the request by the OCS was not a  breach of any of the rules and did not affect the quality of   the statement.

13. It was argued that the statement was not voluntary  because it was not specifically put in writing that he had   said that he wished to record the confession.  PW1 testified that he administered the following caution:-

“Do you wish to say anything?  I caution you that you are not obliged to say anything but whatever you say will be put down in writing and may be used against you in evidence...”

14. PW1 testified that the accused said he understood the caution and elected to give a confession.

15. In my considered opinion, the caution was properly  administered and the accused voluntarily elected to give  the confession.

16. The heading of the statement a “Statement under  inquiry”instead of “confession” does not affect the nature  of the  statement. It was clear from PW1 as he communicated with the accused that he was recording a   confession.

17. Rule 4(1)(c) requires that the recording officer ensures that the accused is not subjected to any form of coercion, duress, threat, torture or any other form.  PW1 testified that he inquired about this as required by the rules. He further said that in his own assessment the accused was  in good health, was comfortable and co-operative. PW2 the 3rd party confirmed this information in his evidence.There was no evidence adduced by the accused to the  contrary.  The court is satisfied that PW1 complied with  the rule.

18. The fact that the OCS Runyenjes had already inquired  from the accused at the station as to whom he wanted as his third party (to be present during the recording) does not make the statement inadmissible.  This is for the  reason that PW1 validated the process and the accused appeared before him with the two third parties.

19. PW2 testified that the accused had already rejected a person suggested to him and instead nominated one  Faustino Njiru.  If accused did not want any of the two   persons, he had the chance to reject them. There is no evidence that he complained about the two or that they  were forced on him.  Rule 3 was therefore complied with.

20. PW1 recorded the names of the third parties nominated by the accused.  The names in the absence of addresses and  other details are sufficient for purpose of recording the confession since the relationship to the accused was  explained in the evidence by PW2.

21. The recording officer's rank was that of a Chief Inspector  which was in compliance with Section 25 of the Evidence    Act.

22. There is no requirement in the rules that the confession be recorded in a certain form i.e. in form of questions and  answers or otherwise.

23. Rule 9 requires that the recording officer at the end of the confession makes a certificate that the accused has made   the statement on his own free will.  PW2  made a   certificate and duly signed it.  The failure to include the  words “on my own free will”does not affect the validity of  the certificate.

24. The evidence of PW1 as corroborated by PW2 establishes that the confession taken from the accused was voluntary   and in accordance with the rules.

25. I hereby so find and direct that the statement will be  admitted in evidence.

26. It is hereby so ordered.

DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Manyal for State

Mr. Njage Morris for accused