[2006] KEHC 3004 (KLR)
The trial was a nullity because the succeeding magistrate failed to comply with Section 200(3) of the Criminal Procedure Code by not informing the appellant of his right to have witnesses resummoned and reheard. This procedural safeguard is mandatory, and its omission deprived the appellant of a fair trial. The...
Source-derived case information.
- Citation
- [2006] KEHC 3004 (KLR)
- Parties
- Appellant: Bernard Muchendu Ndirangu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 285 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Non Compliance With Procedural Requirements, Jurisdiction of Succeeding Magistrate, Right to Rehear Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Muchendu Ndirangu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate complied with Section 200(3) of the Criminal Procedure Code regarding the right of the accused to have witnesses resummoned and reheard.
- 2 Whether failure to comply with Section 200(3) rendered the trial a nullity.
- 3 Whether a retrial should be ordered after such procedural non-compliance.
Ratio Decidendi
The trial was a nullity because the succeeding magistrate failed to comply with Section 200(3) of the Criminal Procedure Code by not informing the appellant of his right to have witnesses resummoned and reheard. This procedural safeguard is mandatory, and its omission deprived the appellant of a fair trial. The court relied on both statutory authority and persuasive precedent from RAPHAEL V REPUBLIC [1969] E.A. 544, which held that such non-compliance is fatal to the proceedings and strips the magistrate of jurisdiction. Since the State did not seek a retrial, the court allowed the appeal, quashed the conviction, and set aside the sentence, ordering the appellant's immediate release...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal No. 285 of 2004
BERNARD MUCHENDU NDIRANGU……......................................................…APPELLANT
VERSUS
REPUBLIC……………………….................................................……………...RESPONDENT
JUDGMENT OF THE COURT
The appellant was charged with robbery with violence contrary to Section 296(2) of the Criminal Procedure Code.
The particulars of the offence were that on the 29th January, 2003 the appellant, jointly with others not before court, while armed with a knife, robbed Boniface Nyakinga Nyaranji, a mobile phone make Motorola valued at Kshs.4500/- and cash Kshs.6000/- and at or immediately after the time of such robbery used violence to the said person. The case was partly heard before Mr. N. Ateya, Senior Principal Magistrate, as he then was, who recorded the evidence of two prosecution witnesses. Thereafter the hearing went on before Mrs S. Muketi Principal Magistrate who finalised the same and delivered a judgment convicting the appellant and sentencing him to death. The appellant was aggrieved by the said conviction and sentence and appealed against the same.
Mr. Gumo, Assistant Deputy Public Prosecutor conceded the appeal, and in our view rightly so saying that Section 200(3) of the Criminal Procedure Code was not complied with. That sub-section provides as hereunder:-
“(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”
The record does not show that Mrs Muketi P.M. complied with the aforesaid provision of the law. That was prejudicial to the appellant. We are of the view that assumption of jurisdiction by the succeeding magistrate without informing the appellant of his right was clearly wrong and the trial by the succeeding magistrate was a nullity. In a Tanzanian case, RAPHAEL V REPUBLIC [1969] E.A. 544 where the court was considering an appeal pursuant to a section of that country’s Criminal Procedure Code which is similar to our Section 200(3) it was held that:-
“(i ) It is a prerequisite to the second magistrate’s exercising jurisdiction that he should appraise the accused of his right “to demand that the witnesses or any of them be resummoned and reheard” under Section 196 of the Criminal Procedure Code.
(ii)If the second magistrate has not complied with this prerequisite it is fatal, he has no jurisdiction, and the trial is a nullity.”
Although Section 200(4) gives this court power to order a retrial where subsection (3) as above quoted was not complied with, Mr. Gumo said that the State was not seeking for a retrial. In the circumstances, we allow the appeal, quash the conviction and set aside the death sentence. The appellant should be set at liberty forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED at Nakuru this 13th day of February, 2005.
D. MUSINGA
JUDGE
13/2/2006
L. KIMARU
JUDGE
13/2/2006
Judgment delivered in open court in the presence of the accused person and Mr. Gumo, Assistant Public Deputy Prosecutor for prosecution.
D. MUSINGA
JUDGE
13/2/2006
L. KIMARU
JUDGE
13/2/2006