Automated Summary
Key Facts
The case involves a witness, PW1 Dedeon Matheka, who refused to be sworn as a Christian. The court initially ordered him to be sworn to test his credibility after he lied about his age. The High Court quashed this order, ruling that the witness must be affirmed under Section 15 of the Oaths and Statutory Declaration Act because he does not subscribe to a religion requiring oaths. The case was reassigned to another magistrate for rehearing.
Issues
The court addressed the legal question of whether a witness (PW1 Dedeon Matheka) could be compelled to take an oath if it is contrary to their religious beliefs, and whether the trial court erred in insisting on an oath for a non-Christian witness. The judgment clarifies that witnesses not adhering to religions permitting oaths (e.g., Christian, Muslim, Hindu) must be affirmed under Sections 13 and 15 of the Oaths and Statutory Declaration Act, and cannot be forced to take an oath.
Holdings
- The court emphasized that a witness cannot be forced to take an oath if it contradicts their religious beliefs. The trial magistrate's order to swear the witness was invalidated, and the witness was required to be affirmed. The court noted that lying under oath does not guarantee truthfulness and that credibility must be assessed independently.
- The court determined that the trial magistrate erred in insisting the witness be sworn under Christian rites, as he is not a Christian or Mohammedan. The decision was quashed, and the witness was directed to be affirmed in accordance with his religious beliefs under Sections 13 and 15 of the Oaths and Statutory Declaration Act. The case was reassigned to a different magistrate for further proceedings.
Remedies
- Directed the case to be placed before another competent magistrate other than Ms. Mwangi to hear and determine the case after giving directions on how to proceed.
- Quashed and set aside the order of the court made on 28/6/2017 requiring the witness to be sworn.
Legal Principles
The court applied the principle that a witness cannot be compelled to take an oath against their religious beliefs. Under Sections 13 and 15 of the Oaths and Statutory Declaration Act, witnesses who object to oaths on religious grounds must be affirmed instead. The judgment emphasizes that forcing a non-Christian witness to swear an oath violates their rights, and affirmations are legally valid alternatives when oaths are refused.
Cited Statute
Oaths and Statutory Declaration Act
Judge Name
R.P.V. Wendoh
Passage Text
- In this case the most relevant sections are Section 13 and 15. It is clear that one cannot be forced to take the oath. Once one gives the reason why he cannot take an oath then he must be affirmed.
- For the above reasons, I find that the court fell into error when it insisted that the witness should be sworn. For that reason, I hereby quash and set aside the order of the court made on 28/6/2017 ordering the witness to be sworn.