Judges: Police record is not crime evidence

Recording a crime or listing the names of suspects in a police occurrence book (OB) is not a legal requirement, the court of appeal has ruled.

Judges Erastus Githinji, Wanjiru Karanja and Patrick Kiage ruled that the book, which is the first entry in recording crime in a police station, does not have a legal effect, meaning that what is recorded in it is not evidence of commission of an offence.

The three judges made the finding in a case where three men are contesting a death sentence.

In the criminal case appeal filed by Japheth Gituma, David Mbundi and Alfano Mwongera, the judges ruled that a written statement by the complainant or any other oral report made to the police or other persons after the commission of crime are the only ones that can be used as evidence in court.

The three suspects were charged before a magistrate's court with robbery with violence. The charges stated that they robbed Elijah Imathiu of a coat, a gun, Sh30, 000 and 250 US dollars while armed with a rifle and axes.

Imathiu reported to the police but they did not record the claims in the OB, nor did they enter the names of the three.

The accused persons denied committing the crime. Gatimu, Mbundi and Mwongera demanded that the court should force the police to produce the OB to establish that their names were not recorded.

The judges were told that failure by witnesses to mention the names of the three in the initial report to the police dealt a blow to the prosecution's case.

Section 18(1) of the Police Act makes it mandatory for a police officer to record and keep the book. Part two of the same section requires that the OB should be certified as a true copy and ought to be used as evidence in all legal proceedings.

The judges found that although the law requires that all complaints be recorded in an OB, it was not mandatory to record a suspect's names.