70. The Court notes that the record of the trial proceedings shows that from the
onset of the trial on 13 June 2000, the Applicant objected to the extra-judicial
statement being tendered as evidence. This prompted the High Court to
conduct a trial within a trial.
71. During the trial within a trial, the Applicant testified that he was arrested on
20 March 1995 and that after that, he was beaten by ‘sungusungu’27 He was
then taken to the District Court on 23 March 1995 which ordered that he be
held on remand. The Applicant further testified that instead of being
remanded in prison as per the District Court’s orders, he was taken to a
police station where the police officers beat him and coerced him to confess.
The police officers then took him to the justice of the peace on 24 March
1995 where he confessed to having committed the crime. The Applicant
stated that he agreed to confess because he was under the impression that,
by doing so he would be moved from police custody and be remanded in
prison.
72. The justice of peace (PW1), also testified during the trial within a trial that,
before recording the statement it was ensured that the Applicant was
confessing to the crime voluntarily and complemented by the following
actions: a physical examination of the Applicant for any fresh wounds or
bruises; cautioning the Applicant that his statement could be used against
him in court and communicating the same in Kiswahili, which the Applicant
understands. Hence, the extra-judicial statement was entered as evidence
at the trial before the High Court.
73. The Court observes that the High Court also addressed the contention as
to whether the Applicant signed the confession. Again, the High Court was
satisfied with the testimony of PW1 that the Applicant signed the statement
in her presence after she read it out to him. Moreover, in addressing the
anomaly of keeping the Applicant in police custody instead of taking him to
prison, the Court notes that after the trial within a trial, the High Court ruled
27
A vigilante group or informal security force.
20