Summary

The accused was charged and convicted of arson on the basis of his own confession which he had made to a Ward Secretary.. The accused claimed that the confession was made involuntarily since he had been beaten up and tortured before he made the confession to the Ward Secretary. The trial magistrate admitted the statement without inquiring into the circumstances under which it was made and without giving the accused an opportunity to challenge the admissibility of the statement. Held: (i) the time the confession is made to him, is performing the function of a Police Officer is not admissible; (ii) where the admissibility of a confession comes about in the magistrate’s courts, in which a trial within a trial is not applicable, the magistrate should take up the matter and inquire into the circumstances leading up to the taking of the statement; (iii) However, in the present case, the above does not seem in the final analysis, to help the appellant, for on record the appellant made more than three confessions to different people and at different times before he finally came to the Ward Secretary. Appeal dismissed. Cases referred to: (1) Mohamed Ali and Another. v. R. (1956) 29 K.L.R. 166 2) R. v. Igungu s/o Tungu [1943] E.A.C.A. Ill 3) Omari s/o Musa Mususa v. R. [1968] H.C.D. n. 99 4) Simon v. R. [1970] H.C.D. no. 335

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