The High Court has ruled that testimony previously given by slain businessman Jacob Juma will remain part of the official court record in an ongoing criminal case, dismissing an appeal that sought to have the evidence removed.
In its judgment, the court rejected arguments by an accused person, Otumba, who had challenged the continued inclusion of Juma’s testimony on grounds that it violated the constitutional right to a fair hearing. The defense argued that because Jacob Juma was assassinated before cross-examination could take place, his evidence should not be relied upon during trial.
However, the High Court found that Juma had personally appeared before the trial court and delivered sworn oral testimony while alive, making his evidence a valid and existing part of the proceedings.
The court further clarified that Section 33 of the Evidence Act, cited by the defense, did not apply in this instance. According to the ruling, the provision governs circumstances where statements of deceased persons are introduced after death through third parties and does not extend to witnesses who had already testified directly in court under oath.
The judge emphasized that the issue before the court was not whether the testimony should be removed from the record, but what evidential weight should ultimately be attached to it. The trial court, the ruling stated, retains the responsibility of assessing the value and reliability of the testimony during final determination, including consideration of the absence of cross-examination.
The High Court also declined to interfere with the ongoing proceedings, noting that its supervisory jurisdiction is intended to ensure legality and procedural fairness rather than direct the management of criminal trials at intermediate stages.