PART V – MODE OF TAKING AND RECORDING EVIDENCE IN TRIALS GENERAL

SUBORDINATE COURTS

197. Manner of recording evidence before magistrate
(1) In trials by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner—
(a) the evidence of each witness shall be taken down in writing or on a typewriter in the language of the court by the magistrate, or in his presence and hearing and under his personal direction and superintendence, and shall be signed by the magistrate, and shall form part of the record;
(b) such evidence shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative:
Provided that the magistrate may take down or cause to be taken down any particular question and answer.
(2) Notwithstanding the provisions of subsection (1), a record of any proceedings at a trial by or before a magistrate may be taken in shorthand if the magistrate so directs; and a transcript of the shorthand shall be made if the magistrate so orders, and the transcript shall form part of the record.
(3) If a witness asks that his evidence be read over to him the magistrate shall cause that evidence to be read over to him in a language which he understands.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Finding Persons or Things, and Obtaining Evidence

80. (1) The applicable law with respect to compelling a person to appear before a Judge under section 78 or 79 and to give evidence or answer questions, or to produce documents or other articles, is the law specified in sub¬section (2), which law shall apply with any necessary modifications.
(2) For the purposes of subsection (1), the applicable law is the law of Kenya that applies to the giving of evidence or the answering of questions or the production of documents or other articles on the hearing of a charge against a person for an offence against the law of Kenya.
(3) Notwithstanding subsection (1), for the purposes of sections 78 and 79, the person to whom the inves¬tigation being conducted by the Prosecutor, or the proceedings before the ICC, relates is competent but not compellable to give evidence.
(4) Notwithstanding subsection (1), a person who is required under section 78 or 79 to give evidence, or to produce documents or other articles, is not required to give any evidence, or to produce any document or article, that the person could not be compelled to give or produce in the investigation being conducted by the Prosecutor or the proceedings before the ICC.
(5) A person who is required under section 78 or 79 to give evidence or to produce documents or other articles—
(a) has the same privileges in relation to the answering of questions and the production of documents or articles as if the investigation were being conducted in Kenya or the proceedings were pending in a Kenyan court, as the case may be; and
(b) shall be given a copy of any statement required to be given to a witness under the ICC Rules in the manner and form required by those Rules.

(6) Subsections (4) and (5) shall have effect subject to section 27 and any contrary provision in the Rome Statute or the ICC Rules.

31. Vulnerable witnesses
A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is—

the alleged victim in the proceedings pending before the court;

a child; or

a person with mental disabilities.

The court may, on its own initiative or on request of the prosecution or anywitness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable witness if in the court’s opinion he or she is likely to be vulnerable on account of—

age;

intellectual, psychological or physical impairment;

trauma;

cultural differences;

the possibility of intimidation;

race;

religion;

language;

the relationship of the witness to any party to the proceedings;

the nature of the subject matter of the evidence; or

any other factor the court considers relevant.

The court may, if it is in doubt as to whether a witness should be declared vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness.

Upon declaration of a witness as a vulnerable witness in terms of this section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures—

allowing such witness to give evidence under the protective cover of a witness protection box;

directing that the witness shall give evidence through an intermediary; (c) directing that the proceedings may not take place in open court;

prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; or

any other measure which the court deems just and appropriate.

Once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an intermediary.

An intermediary referred to in subsection (3) shall be summoned to appear in court on a specified date, place and time to act as an intermediary and shall, upon failure to appear as directed, appear before the court to advance reasons for such failure, upon which the court may act as it deems fit.

If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may—

convey the general purport of any question to the relevant witness;

inform the court at any time that the witness is fatigued or stressed; and

request the court for a recess.

In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court shall have regard to all the circumstances of the case, including—

any views expressed by the witness, but the court shall accord such views the weight it considers appropriate in view of the witness’s age and maturity;

any views expressed by a knowledgeable person who is acquainted with or has dealt with the witness;

the need to protect the witness’s dignity and safety and protect the witness from trauma; and

the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.

The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.

A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.

Any person, including a juristic person, who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatsoever reveals the identity of a witness in contravention of a direction under this section, is guilty of an offence and liable on conviction to imprisonment for a term of not less than three years or to a fine of not less than fifty thousand shillings or to both if the person in respect of whom the publication or revelation of identity was done is under the age of eighteen years and in any other case to imprisonment for a term of not less three years or to a fine of not less than two hundred thousand shillings or to both.

Any juristic person convicted of any offence under this section shall beliable to a fine of one million shillings.

An accused person in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness by stating the questions to the court and the court shall repeat the questions accurately to the witness.