Kenya: Why Murder Suspect Walked Free Despite Admitting to the Offence

September 2, 2021 | 7:18 am


The High Court in Mombasa has terminated the trial of a murder suspect because it hinged heavily on a confession he made to ordinary people not recognised by law.

Malindi Resident Judge Reuben Nyakundi said any statement made to a private citizen or a police officer below the rank of a chief inspector is not admissible in a court of law.

“As a general rule, confessions are inadmissible in a criminal trial unless it (confession) passes muster under rigid rules provided in the Evidence Act, and rules promulgated therein christened as out of court confession, Rules 2009,” the judge said.

Justice Nyakundi also said that among the key requirements of the law is the fact of a confession statement being made voluntarily to a police officer in the rank of chief inspector and above.

And with this, Ali Suleiman Ali’s trial over the murder of Lamu-based businessman Joseph Kamau Kanyi came to an end.

The judge said that though there was some evidence indicating that Mr Ali may have committed the offense, it did not meet the burden of proof.

“Consequently, the charge against the accused person is dismissed and (he) is therefore set free unless otherwise lawfully held,” the judge said.

Prosecutors had said that shortly after allegedly killing Mr Kanyi, Mr Ali shared the story, in the form of an admission, with his friends Francis Mwangi and Paul Gichira.

He allegedly told the two that he had killed someone. The two would later learn from his neighbours that Mr Kanyi was the “someone” Mr Ali told them he had killed.

Mr Mwangi was the first prosecution witness. His evidence was that Mr Ali had panicked and told him he had killed someone.

His sentiments were echoed by Mr Gichira, who also testified in the case.

“I did not know that it was Mr Kanyi that Mr Ali was referring to during our conversations,” Mr Gichira said.

When Mr Ali appeared in court for the first time, he pleaded not guilty to the offense allegedly committed between April 4 and 5, 2018 in Breeze View, Mpeketoni.

The investigating officer corroborated the testimony of the witnesses.

Prosecutors closed their case and asked that Mr Ali be put on his defense so that he could provide his side of the story.

To secure a conviction, the State was required to lay down concrete evidence against Mr Ali beyond reasonable doubt that he committed the offense.

The State was also required to prove the element of malice aforethought in the killing.

The prosecutors’ main argument was that Mr Ali had confessed to the murder in the presence of the two witnesses.

But the court said none of the witnesses saw the accused person kill Mr Kanyi.

Their testimony was, therefore, based on the alleged admission of Mr Ali that he had killed the businessman.

Court records show that the assertions of Mr Mwangi and Mr Gichira confirmed that Mr Kanyi was killed but they were unaware of subsequent events.

A postmortem report produced in court showed that Mr Kanyi suffered injuries in the right side of his forehead, his right eye, the upper and lower jaw and the left side of his head.

In the opinion of the author of the report, the cause of Mr Kanyi’s death was severe head injury with hemorrhagic shock secondary to severe bleeding.

Justice Nyakundi noted that the evidence was purely circumstantial with respect to the crime and the alleged participation of Mr Ali.

The judge, however, noted that taking all material together, there was evidence of the existence of malice aforethought at the close of the prosecution’s case that may be deduced from the evidence of the two witnesses and the postmortem report.

“In our criminal law system, for a confession to be admitted, it must be made voluntarily, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held by a person in authority,” he said.

The judge noted that under Article 50 (4) of the Constitution, the law says that evidence obtained in a manner that infringes a suspect’s rights will be excluded.

“If such evidence is to be admitted in the proceedings at hand, it would bring the administration of justice into disrepute. To that extent, taking this evidence as a whole, one can conclude that the accused’s right to a fair trial would be in jeopardy,” he said.

The judge concluded that given the gravity of the offence, the proof needed to be completely independent of the accused’s admission to the witnesses.

If Mr Ali had intended to confess to the murder, the judge said, he should have put down his confession in writing and signed it in the presence of a senior police officer.