Phillip Ondara Onyancha’s acquittal by the High Court may have been even more shocking to some than his revelations approximately 12 years ago. ‘In 2009 he admitted to the killing of 18 women and claimed to have been instructed by the devil to do so.’[1] In a recent judgment, ‘Justice Lesiit found that Onyancha had been wrongfully convicted as his confession was inadmissible.’[2]Justice Lesiit found that the confession was not obtained in accordance with the Evidence (Out of Court Confession Rules) of 2009 (the Rules). What then does it take for a confession out of court to be admissible?

When determining the elements of an admissible confession out of court, one must be guided by the Rules. The first issue is whether the person recording the confession is allowed by law to do so. The Rules refer to a recording officer who is defined as ‘a police officer (other than the investigating officer) who is not below the rank of Chief Inspector of Police.’[3] A confession is thus inadmissible if it is recorded by the investigating officer or an officer of a rank lower than Chief Inspector of police.

The second issue is what the rights of an accused person are during an out of court confession. The Rules proceed to require that ‘the recording officer ensures the accused person-

(a) has stated his preferred language of communication;

(b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English;

(c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;

d) is informed of his right to have legal representation of his own choice;

(e) is not deprived of food, water or sleep;

(f) has his duration, including date and time of arrest and detention in police custody, established and recorded;

(g) has his medical complaint, if any, adequately addressed;

(h) is availed appropriate communication facilities; and

(i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.’[4]

Justice Lesiit found that ‘Onyancha’s confession was made when he was handcuffed which violated the provisions of Rule 4(1) c of the Rules.’[5]

The Rules also require that the recording officer cautions the accused in the following manner: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.”[6]

Rule 8 provides that ‘the accused shall have the opportunity to clarify on any statement made during the confession.’[7] This is important as it enables the accused to add on any information they feel is necessary and also to explain parts of their confession that they feel are incomplete.

The final step in the process is the certificate of confession which should read: ‘I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.’[8] This serves as the final opportunity for the accused person to reconsider his confession and acts as an additional safeguard against injustice.

The Rules also provide at Rule 10 for confessions not in English or Kiswahili. The Rules require that ‘the recording officers has the confession translated into English and Kiswahili.’[9] This provision enables those who are unable to speak or write in English or Kiswahili to record a confession.

Though the failure of the investigating officer to ensure that the confession was duly recorded led to Onyancha’s acquittal, the Rules were put in place to protect the accused person. It is in the interest of both the accused and the police that the Rules are followed to the letter.

Brayan Gitau is currently pursuing a diploma at Kenya School of Law.  He graduated from Strathmore Law School with an LLB (Hons). He has an interest in criminal law and criminal litigation and hopes to contribute to Kenya’s jurisprudence on the same.

[1]Dennis Onsarigo, ‘The devil told me to kill 100 women- ‘Reformed’ serial killer Onyancha’ (The Standard, 2017)<> accessed on 30th July 2021

[2]Republic v Phillip Ondara Onyancha[2021]eKLR

[3]Rule 2, Evidence(Out of Court Confession Rules), 2009

[4]Rule 4, Evidence(Out of Court Confession Rules), 2009

[5]Republic v Phillip Ondara Onyancha[2021]eKLR

[6]Rule 5, Evidence(Out of Court Confession Rules), 2009

[7]Rule 8, Evidence(Out of Court Confession Rules), 2009

[8]Rule 9, Evidence(Out of Court Confession Rules), 2009

[9]Rule 10, Evidence(Out of Court Confession Rules), 2009

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