PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

EXAMINATION OF WITNESSES

150. Power to summon witnesses, or examine person present
A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:
Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.

151. Evidence to be given on oath
Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.

152. Refractory witnesses
(1) Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence—
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him; or
(c) refuses or neglects to produce any document or thing which he is required to produce; or
(d) refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.
(2) If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him.
(3) Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.

153. Repealed by Act No. 46 of 1963, Second Sch.

COMMISSIONS FOR THE EXAMINATION OF WITNESSES

154. Issue of commission for examination of witness
(1) Whenever, in the course of a proceeding under this Code, the High Court or a magistrate empowered to hold a subordinate court of the first class is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the court or magistrate may issue a commission to any magistrate within the local limits of whose jurisdiction the witness resides, to take the evidence of the witness.
(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in the case of a trial.

155. Parties may examine witnesses
(1) The parties to a proceeding under this Code in which a commission is
issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon those interrogatories.
(2) Any such party may appear before the magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the witness.

156. Power of magistrate to apply for issue of commission
Whenever, in the course of a proceeding under this Code before a magistrate other than a magistrate empowered to hold a subordinate court of the first class, it appears that a commission ought to be issued for the examination of a witness whose evidence is necessary for the ends of justice, and that the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the magistrate shall apply to the High Court, stating the reasons for the application; and the High Court may either issue a commission in the manner provided in section 154 or reject the application.

157. Return of commission
(1) After a commission issued under section 154 or section 156 has been duly executed it shall be returned, together with the deposition of the witness examined thereunder, to the High Court or to the magistrate empowered to hold a subordinate court of the first class (as the case may be), and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) A deposition so taken, if it satisfies the conditions prescribed by section 34 of the Evidence Act (Cap. 80) may also be received in evidence at a subsequent stage of the case before another court.

158. Adjournment of inquiry or trial
In a case in which a commission is issued under section 154 or section 156, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

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.