ACADEMIC YEAR: 2013/2014

ATP 101: CRIMINAL LITIGATION

COURSE CONVENER: JUST (RTD) B.P. KUBO

Question (a): What difference, if any, is there between a repudiated confession and a retracted confession and what
evidentiary value or weight is attached to either if admitted in evidence during criminal proceedings?

FIRM SEVEN 7A

MEMBERS:

RACHEL CHEPKOECH 2013192

MARY AKUMU 2013707

KEZIAH RUTTO 2013775

MAUREEN MBURU 2013364

MUSAMBAI ERIC 20131128

JANET NDUKU 2013553

ASENATH MORAA 2013632

DOREEN ARERI 2013035

APOLOT SARAH 20131216

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JOY KAARIA 2013912

MARIAM SHIGADI 2013495

ABIGAEL MUKUI 2013427

JOSHUA KIZZA 2013928

MAGETO NATHAN 2013302

RICARDA WANGAI 2013994

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Table of Contents

Introduction……………………………………………………………………………………4

Definition of the term Confession……………………………………………………………..4

Classical Definition……………………………………………………………………………4

Common Law Definition………………………………………………………………………4

Statutory Definition…………………………………………………………………………....4

Validity of Confessions……………………………………………………………………......5

Ingredients of a Valid Confession……………………………………………………………..6

Mode of Making Confessions………………………………………………………………....6

Principle Behind Acceptance of Confessions in Criminal Cases and Admissibility of

Confessions……………………………………………………………………………………7

Key Features of the Rules with regards to admissibility of out of court confessions
include…………………………………………………………………………………………7

Retracted and Repudiated Confessions………………………………………………………10

Evidentiary Weight attached to Retracted and Repudiated Confessions…………………….11

Conclusion……………………………………………………………………………………13

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Introduction

In answering this question, the definition of the term confessions will first be undertaken. Further, this paper will look at what
constitutes a valid confession and generally admissibility of confessions. After that, we will look at what is meant by the terms
repudiated and retracted confessions, their difference and the evidentiary weight attached to either upon their admission by
court.

Definition of the term Confession

Classical Definition

The classical definition of a confession as provided by Fitz James Stephens1 is that “a confession is an admission made at any
time by a person charged with a crime stating or suggesting the inference that he committed that crime.” This definition was
found wanting in Swami v. King Emperor2 where Lord Atkin on his part defined it as: “a confession is a statement which admits
in terms either an offence or substantially all the facts which constitute an offence.”

Common law definition

Confessions3 at Common Law was defined as an admission made at any time by a person charged with a crime, stating or
suggesting the inference that he committed the crime. In Queen-Empress v. Babu Lal4 a confession was defined as an
admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
It is worth noting that exculpatory statements do not amount to confessions as was stated in the case of Swami v. King
Emperor5

Statutory Definition

Evidence Act6, defines confession as follows: ‘A confession comprises words or conduct, or a combination of words and
conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn
that the person making it has committed an offense.’ 7

At common law a confession is an adverse admission relevant to the issue of guilt in criminal cases. 8 Although in common
parlance, the word ‘confession’ connotes a full admission of guilt, it has no such meaning in law, either at common law or under
statutory definition. As long as any part of a statement is adverse to the maker, in that it has some relevance to the issue of
guilt, it will be deemed a confession for the purpose of the law of evidence. Even an indirect admission will suffice, if some
adverse inference can properly be drawn.

Admissions are admitted because the conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts,
speech or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. It is worth nothing

1 Sir James Fitzjames Stephen, Digest of the Law of Evidence(12th Edition, 1948) at page 21.
2 (1939) All ER 396.
3 Queen Emperess v Babu Lai (1884) 6 All. 509, 539, F.B.
4
(1884) 6 All. 509, 539, F.B.
5 Supra note 2
6 Cap 80 Laws of Kenya
7 Ibid S 25
8
See, Murphy on Evidence, Tenth Edition at page 299.

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that admissions are very weak kind of evidence and the Court may reject them if it is satisfied from other circumstances that
they are untrue.9

It is immaterial to whom an admission is made. An admission made to a stranger is relevant. Admissions are as much binding to
the State as ordinary persons. The general rule is that admissions are admissible against the party making them and not against
any other party.

Validity of Confessions

For a confession to be valid, it must be voluntary10. The burden of proof lies with the prosecution to prove that the confession
was made voluntarily with no coercion or torture as was held in Onyango-vs-Otonito11.

In Kenya confessions are generally not admissible unless made in court before a judge or magistrate or a police officer(other
than the Investigating Officer) being an officer not below the rank of Chief Inspector of Police and a third party of the person’s
choice.12 S 29 No confession made to a police officer shall be proved against a person accused of any offence unless such police
officer is–

(a) of or above the rank of, or a rank equivalent to, inspector; or

(b) an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer.

However, out of court confessions are admissible under the newly constituted Evidence (Out of Court Confession) Rules,
200913.

Failure to ensure that a confession is made either before a judge, magistrate or a police officer of the requisite rank will render
it inadmissible. It must be proved that the confession was made by the person against whom it is tendered.

Ingredients of a valid Confession

(i) The confession must admit the offence in terms or substantially all facts which constitute the offence
(ii) The statement must be adverse to the maker for it to qualify as a confession as was held in the case of Swami v
King Emperor14.

9 Latafat Husain v. Lala Onkar Mal, (1934) 10 Luck. 423; Raja Partab Bahadur Singh v. Raja Rajgan Maharaja Jagatjit Singh, (1936) 12 Luck.
371.
10 S 26 Evidence Act A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a

criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or
promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of
the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
11
(1974) E.A.C.A. 256
12 S 25A of The Evidence Act
13 Established by the Attorney General, in consultation with the Law Society of Kenya, the Kenya national commission on human rights in

exercise of the powers conferred by s 25A(2) of The Evidence Act

14
Supra note 2

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Mode of making confessions
A confession, like any other admission, may be made:-
(i) orally,
(ii) in writing,15
(iii) by contract,or
(iv) in any way from which a proper inference may be drawn adverse to the maker.

Principle Behind Acceptance of Confessions In Criminal Cases and Admissibility of Confessions

Confessions are received in evidence in criminal cases upon the same principle on which admissions are received in civil cases,
namely, the presumption that a person will not make an untrue statement against his own interest.

The fundamental condition for the admissibility of confession at common law, as indeed is the case under the Evidence Act was
that it should have been made voluntarily. There were two reasons given for this rule:-

(i) Reliability Principle – an involuntary may not be reliable because an accused person subjected to threats,
inducements or oppression may confess falsely so as to avoid the repercussions of the threat.
(ii) Disciplinary Principle – the police need to be discouraged from using improper means of obtaining a confession
from an accused by being deprived of the advantage of a confession for the purpose of obtaining a conviction.

The admissibility of out of court confessions is governed by the New Evidence (Out of Court Confession) Rules, 2009. These
rules were established by the Attorney- General, in consultation with the Law Society of Kenya, the Kenya National Commission
on Human Rights in exercise of the powers conferred by section 25A(2) of the Evidence Act.

Key Features of the Rules16 with regards to admissibility of out of court confessions include:-
1. The rules allow an accused person to make a confession to a police officer in his or her preferred language. The accused also
has a right to be given an interpreter where need arises.17
2. The rules re-affirm that an accused shall not be subjected to any form of coercion, duress, threat or torture. 18
3. A police officer shall not record a confession from an accused person who complains of being tortured and shows signs of
torture such as open wounds, body swelling or extraordinary fatigue that would show that the accused has been tortured. This
also guards the police from any false accusation that they tortured the accused so as to get the confession. 19
4. The out of court confession rules require that the accused nominates a third party to be present while the confession is being
made. The recording officer is required to take down the third partys particulars including the relationship with the accused. 20

15 Rule 7 Evidence (Out of Court Confession) Rules, 2009.

16
Evidence (Out of Court Confession) Rules, 2009.
17Evidence (Out of Court Confession) Rules, 2009 Rule 4(1) (a) and (b).
18 Ibid Rule 4(1)(c)
19 Ibid Rule 4(2)
20
Ibid Rule 4 (3)

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5. The recording officer is required to caution the accused prior to making the confession. The officer should give a warning to
the accused that whatever he or she says may be given in evidence and that they are under no obligation to make any
statements.21
6. The confession should be recorded at the same time it is made. The date, time and place the confession was made should
also be recorded.22
7. Where the recording of the confession seems to be taking long, a relaxation period has to be given. 23
8. The outstanding feature of the out of court confession rules is that it provides for the electronic recording of confessions. 24
This rule seems to have been borrowed from Jane Betty Mwaiseje and 2 Others v. Republic25. In this case three appellants
having been charged with murder were convicted based on their own confessions. The case against the appellants was based
wholly on inculpatory statements made under caution, the statements having been recorded on video tape. The question was
whether the video tape recordings and the tape transcriptions of the conversation between a superintendent and the second
and third appellants were admissible. With regard to the video tape recorded evidence, a trial within a trial with respect to each
statement and video tape was conducted. The Court held that video-tape recorded evidence is admissible as evidence and that
it would be desirable not only to caution an accused person but also to have the caution video-tape recorded, before leaving
the police station for such an exercise.
9. Where the confession is going to be recorded in electronic media, the accused shall be notified of such recording so that he
may object to this if he wishes. The recording has to be done in the open. 26
10. The original record referred to as the master recording shall be adduced in court as evidence. The accused may, if he
requests, be given a copy of such recording.27
11. The confessions can also be made in writing where the accused may either write his own confession statement in his
preferred language or have the police officer write it down for him.28
12. If the confession is not made in English or Swahili, the recording officer shall ensure that it is translated into either
language.29
13. Every confession whether recorded electronically or written must contain a certificate at the end of the confession stating
that the accused has read the statement, that he is aware that he can correct or add anything he wishes and lastly that he made
the statement out of free will.30
14. The recording officer, aside from being the proper prosecution witness to prove to the court beyond reasonable doubt that
the Rules were complied with, shall also certify, in writing, that the confession was not obtained as a result of any inducement,
threat or promise having reference to the charge against the accused.31

21 Ibid Rule 5(1)

22 Ibid Rule 5(3)
23 Ibid Rule 5(2)
24 Ibid Rule 6(1)
25 Criminal Appeal 17 of 91 eklr.
26 Evidence (Out of Court Confession) Rules, 2009 Rule 6(2).
27
Ibid Rule 6(4) and (6)
28 Ibid Rule 7
29 Ibid Rule 10
30 Ibid Rule 9
31
Ibid Rule 13

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Repudiated and Retracted Confessions
An accused person may repudiate or retract his confession. The purpose of retracting or repudiating confession is to question
the validity of a confession. Retracted and repudiated confessions basically question the voluntariness in the making of such
statements. As noted earlier, for a confession to be valid it must be voluntary. If such a confession is said to have been made
under duress, coercion of inducement, such a statement ceases to be valid and thus not valid.

The difference between the two terms was drawn in the case of Tuwa Moi v Uganda32 where the court held that “a retracted
confession occurs when the accused person admits that he made the confession but now seeks to recant, to take back
generally what he said on the ground that he had been forced or induced to make the statement. In other words, that the
statement was not voluntary. On the other hand, a repudiated statement is one that the accused person avers he never made
one.”

When a statement made by an accused person is produced at trial, the accused may allege that he never made the statement
or he may admit having made the statement but under threat, inducement or coercion.33 On one hand the accused may say he
never made the statement. He could disown the same when it is brought to court. Or secondly he could admit having made the
statement, but allege that he only made it because of the inducement, threat or promises emanating from a person in
authority. When an accused person denies ever having made a statement, he is said to have repudiated the statement. When
he acknowledges that indeed he made the statement, but proceeds to state that he made the same either under duress or
inducement, he is said to have retracted the statement.

In practice, the court is required to try a disputed retracted or repudiated confession. 34 The burden of proving that the
confession was made voluntarily lies with the prosecution. The defense usually has to raise the issue of repudiation or
retraction, the prosecution call witnesses to prove that the statement was properly taken and they can be cross-examined.
Alternatively, the accused person could make a written statement to challenge the statement or opt to give a statement on
oath or call witness to attest to the evidence. The presiding judge shall then determine the reliability or otherwise of the
confession statement. Hence a trial within a trial in both high court and magistrate court. The procedure for a trial within a trial
was highlighted in the case of Stephen Muriungi and others v R35

Where a confession is retracted or repudiated and where there is no evidence to corroborate the confession, the trial
court should conduct trial within a trial (inquiry ) to ascertain the legality of the confession and before it admits that

32 (1967) EA 1884 (CA)

33 http://kenyalawresourcecenter.blogspot.com/2011/07/is-voluntary-confession-is-always.html#!/2011/07/is-voluntary-confession-is-
always.html
Is a voluntary confession is always admissible?
34Procedure in Criminal Law in Kenya by Momanyi Bwonwong’a at

http://books.google.co.ke/books?id=NveTB8lBTckC&pg=PA247&lpg=PA247&dq=retracted++confession-
+kenyan+cases&source=bl&ots=GXSG0gv6EY&sig=LE_T5qWaRfDkCANRLc-
FlHriDu8&hl=sw&sa=X&ei=8ricUd72JcPe7Aat_IGADw&ved=0CFYQ6AEwBA#v=onepage&q=retracted%20%20confession-
%20kenyan%20cases&f=false
35
HC Cr. Appeal No. 901-904 of 1982 (unreported).

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confession in evidence, without doing so the act results in fundamental and incurable irregularity as was stressed in
Twaha Ali and 5 others v R36.

Evidentiary Weight attached to Retracted and Repudiated Confessions

Due to their similar effect, the two shall be discussed together. In the case of Warui v R37it was stated that a retracted
confession was admissible only if it was corroborated by circumstantial evidence, however, in the subsequent case of Thiong’o
v R38 the court stated that there is no rule law that a court cannot act on a repudiated or a retracted confession unless it is
corroborated in material particulars.

In practice however, courts are reluctant to convict on the basis of a repudiated or retracted confession. Despite the fact that
there is no rule or law that requires corroboration of such confessions before they are admitted and consequently used in the
conviction of an accused person, courts require corroboration due to the sensitive nature of these statements. This was held in
the case of Tuwa Moi v Uganda39 where the court held that the judges in that case proceeded to say that in terms of effect,
there is no much difference between repudiated and retracted because the implication is the same, that is that such
statements be treated with caution and should not form basis for conviction, unless it has been corroborated in some material
particular.

In Uganda V Kanunini Edward40, Judge Allen held that with regard to retracted confessions, the court should direct itself on the
dangers of acting on it in the absence of corroboration and some material particular except where the court is fully satisfied in
the circumstances of the case that it must be true. In ZenonZavuru41 the Court of Appeal of Uganda stated that once the
appellant had repudiated the confession the trial judge ought to have directed himself and the assessors to the effect that court
had to accept the confession with caution and had to be satisfied that in all circumstances of the case the confession was true.

In the Supreme Court of Nigeria Holden at Abuja in Stephen Haruna v the Attorney General of the Federation it was held that,
“considering the fact that the appellant retracted ever making the third confessional statement (Exhibit “M3”), it is relevant to
address the issue on whether the court can convict on such evidence. It is settled law that the court can still admit and convict
on a retracted confession, if satisfied that the accused person made the statement and as to the circumstances which give
credibility to the contents of the confession. Yet it is desirable that, before conviction can be properly based on such a retracted
confession there ought to be some corroborative evidence outside the confession which would make it probable that the
confession was true.”42

It is a settled rule that unless a retracted confession is corroborated, a conviction cannot be based on it alone. 43A court may
take into account the retracted confession but it must take into consideration the reasons for making the confession as well as

36 Criminal Appeal No. 78 of 2004 CAT (Unreported).

37 (2004) K.L.R, 750
38 (2004)2 K.L.R 38
39 Supra note 11
40 (1976) HCB 159
41 (1993-1993) HCB 7
42
http://www.dailytrust.com.ng/index.php/law/37624-court-can-admit-convict-on-a-retracted-confession
43 Textbook on the Law of Evidence by M. Monir at

http://books.google.co.ke/books?id=ml3jDmdoU1gC&pg=PA102&lpg=PA102&dq=retracted++confession&source=bl&ots=mJm2518Ayi&sig=
FJKJmIDeWocjxmLyHLzmHpuQs6k&hl=sw&sa=X&ei=Yq2cUeqDD6HX7AaTiYHoBw&ved=0CGQQ6AEwBg#v=onepage&q=retracted%20%20co
nfession&f=false

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the retraction and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or
not.44

In Pyare Lal Bhargava v State of Rajasthan45 the four judge-bench of the Supreme Court observed that a retracted confession
may form the basis of a legal conviction if the court is satisfied that it was true and voluntarily made. However, the court went
further to state that no conviction shall be made on a retracted confession without corroboration and that it was not as a
matter of rule of law but on a matter of prudence.

Conclusion

In conclusion, in dealing with repudiated and retracted confessions, courts have to exercise due prudence in dealing with the
matter. Even though in law, one can be convicted on the basis of such confessions once admitted into evidence, due to the
sensitive nature of the issues, it is prudent that the court maintains its practice and not convict on the basis of such confessions
without any sufficient corroboration.

Bibliography

Books

1. Murphy on Evidence, Tenth Edition at page 299.

2. Procedure in Criminal Law in Kenya by Momanyi Bwonwong’a
3. Textbook on the Law of Evidence by M. Monir

Articles

1. Sir James Fitzjames Stephen, Digest of the Law of Evidence(12th Edition, 1948) at page

Internet Sources

1. http://kenyalawresourcecenter.blogspot.com/2011/07/is-voluntary-confession-is-always.html#!/2011/07/is-
voluntary-confession-is-always.html
Is a voluntary confession is always admissible?
2. http://books.google.co.ke/books?id=NveTB8lBTckC&pg=PA247&lpg=PA247&dq=retracted++confession-
+kenyan+cases&source=bl&ots=GXSG0gv6EY&sig=LE_T5qWaRfDkCANRLc-
FlHriDu8&hl=sw&sa=X&ei=8ricUd72JcPe7Aat_IGADw&ved=0CFYQ6AEwBA#v=onepage&q=retracted%20%20confessi
on-%20kenyan%20cases&f=false
3. http://www.dailytrust.com.ng/index.php/law/37624-court-can-admit-convict-on-a-retracted-confession

4. http://books.google.co.ke/books?id=ml3jDmdoU1gC&pg=PA102&lpg=PA102&dq=retracted++confession&source=bl&
ots=mJm2518Ayi&sig=FJKJmIDeWocjxmLyHLzmHpuQs6k&hl=sw&sa=X&ei=Yq2cUeqDD6HX7AaTiYHoBw&ved=0CGQQ
6AEwBg#v=onepage&q=retracted%20%20confession&f=false

44 State (NCT of Delhi) v Navjot Sandhu, 11 SCC 600 (664) par 32

45
(1978) 3 SCC 435 (443) par 23

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