Jared Otieno Ambego v Republic [2015] KECA 78 (KLR)

The court applied section 25A(1) of the Evidence Act, which requires that an out-of-court confession be made before a police officer of at least the rank of Chief Inspector (other than the investigating officer) and a third party of the accused's choice. The recording officer certified, per rule 14 of the Evidence (Out of Court Confessions) Rules, 2009, that no inducement, threat or promise was used. The accused never objected to production nor retracted the statement, so no trial within a trial was required and the relatives need not be called.

Relying on Komora v Republic, the court distinguished a retracted confession, which must be treated with caution, from one neither objected to nor retracted. Since the appellant did not object to the production of the statement and did not retract it, there was no need for corroboration before admission, and the prosecution was not obliged to call the two relatives present at the recording; the appellant was at liberty to call them as defence witnesses but did not.

The complainants could not identify the robbers, but the recovery of the stolen Nokia 1208 from George Owino Ngesa, who said he received it from the appellant together with Kshs.700, occurred ten days after the robbery. In the absence of a reasonable explanation as to how the appellant otherwise obtained the phone, and together with the confession statement, the inference of guilt was irresistible.

Section 296(2) prescribes that a person convicted of robbery with violence shall be sentenced to death, with no alternative. Following the Court's five-judge decision in Joseph Njuguna Mwaura & 2 Others v Republic, which affirmed that death sentence is the only lawful sentence for robbery with violence and held Mutiso per incuriam in purporting to grant sentencing discretion for capital offences, the High Court's substitution of 15 years was misguided and had to be set aside.