Refractory Witness Under Kenya Law

Definition of a Refractory Witness Under Kenya Law
A refractory witness is described in S. 152 of the CPC as one who appears incourt either in obedience to a summons or by virtue of a warrant, or while incourt and being required by the court to give evidence-i.refuses to be sworn; or
ii.having been sworn, refuses to answer any question put to him/her; or
iii.refuses or neglects to produce any document or thing which he/she isrequired to produce; or
iv.refuses to sign his/her deposition, without offering sufficient excuse forhis/her refusal or neglect.In such event, the court may adjourn the case for a period not exceeding 8days and in the meantime commit that person to prison, unless he/she soonerconsents to do what is required of him/her. This procedure may be repeateduntil the person complies with the wishes of the court. Inaddition, the personmay be liable to any other punishment prescribed by law. In the latter regardrecourse may be had to S. 121(b) of the Penal Code, Cap. 63 which makessuch Behaviour an offence attracting imprisonment for up to 3 years.A hostile witness is one who gives evidence which is contrary to what he/shepreviously undertook to give, thereby projecting the image of one not desirousof telling the truth. When such happens, it is open to the party that called thewitness to apply to have the witness declared as hostile and to cross-examinehim/her in order to expose his/her unreliability and thereby discredit him/herso that even the opposing side cannot benefit from the witness‘ change ofmind. By changing tune, the witness calls his/her character and credibility intoquestion. His/her cross-examination by the party who calls him/her ispermissible under Sections 161 and 163(1)(b) & (c) of the Evidence Act. Ref.may also be made in this regard to:Alowo –vs- Republic[1972] EALR 324;Batala –vs- Uganda[1974] EA 402;Shiguye –vs- Republic[1975] EA 191;Abel Monari Nyamamba & 4 Others[1996] eKLR (Criminal Appeal No. 86 of1994)i)Close of prosecution caseWhen evidence of witnesses for the prosecution is concluded, one of threethings may happen:-i.If the court considers there is no evidence that the accused committedthe offence, the court shall, after hearing, if necessary, such arguments