[2022] KEHC 16370 (KLR)

Chacha v Republic (Criminal Appeal E027 of 2022) [2022] KEHC 16370 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16370 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E027 of 2022

RPV Wendoh, J

December 15, 2022

Between

Chrispine Julius Chacha

Appellant

and

Republic

Respondent

Judgment

1. On March 23, 2022, the resident magistrate Kehancha convicted the appellant, Chrispine Julius Chacha for the offence of grievous harm contrary section 234 of the Penal Code.

2. The particulars of the charge were that on December 22, 2020 at Siabai village, Siabai location in Ntimaru sub county, unlawfully did grievous harm to Lucas Marwa Wambura. Upon conviction, the appellant was sentenced to serve five (5) years imprisonment.

3. The appellant is dissatisfied with the judgment of the court and filed this appeal based on the following grounds:-1. That the court violated the appellants rights under article 50(2) (g)and (h) of the Constitution;2. That the offence was not proved to the required standard;3. That the appellant’s defence was not considered;4. That the sentence is harsh and excessive.

4. He also filed submissions in support of the appeal. The appellant submitted that he was not given witness statements by the prosecutor and not informed of his right to counsel. The appellant also urged that there were contradictions in the evidence in that whereas it was alleged that a nut was used in the assault, a panga was later introduced as the weapon used. He urged that the court do quash the conviction and set aside the sentence. He urged the court not to order a retrial.

5. Mr Mulama, the prosecution counsel filed submissions opposing the appeal. On non-compliance with article 50(2)(b) (g) (j) and (h), counsel submitted that the appellant was supplied with a charge sheet that contained sufficient detail to enable him understand the charge; that he was then served with witness statements in advance to enable him prepare for his trial.

6. On the right under sub article 2 (h) counsel submitted that it is not automatic that an accused person will be entitled to representation at state expense, but it is qualified, in that an accused has to demonstrate that substantial injustice will result. Counsel relied on the case of David Njoroge Macharia v Republic (2011) eKLR and Republic v Karisa Chengo & 2 others (2017) eKLR where the Supreme court stated that though legal representation is important in criminal cases. In determining substantial injustice, that may be suffered, the court should consider, 1. The seriousness of the offence; 2)The severity of the sentence; 3)The ability of the accused person to prepare his own legal representation; 5) Whether accused is a minor; 6) The literacy of the accused and 6) the complexity of the charge. Counsel argued that the accused had not convinced the court that substantial injustice will be suffered by him. Counsel went on to argue that no prejudice was suffered by the appellant.

7. As to proof of the ingredients of the offence of grievous harm, it was submitted that the offence occurred during the day; that PW1 recognized his assailants and PW2 saw the appellant and his companion at the scene; that PW1 informed his father (PW3) who the preparators were; that PW1’s testimony was corroborate by PW4 the clinical officer who confirmed the injuries that PW1 had suffered; that PW1 was consistent in his testimony when he reported to PW5 who the assailants were. Counsel urged that the alibi raised by the appellant was not able to dislodge the complainant’s water tight evidence.

8. As to the complaint that the sentence was harsh, counsel submitted that the appellant was given an opportunity to mitigate and even though the injuries, suffered by the complainant were of a permanent nature, the court only sentenced the appellant to five years imprisonment yet the sentence prescribed under section 234 is life imprisonment. Counsel relied on the decision inKariuki v Republic (1970) EA 230 where the court held that sentencing is a discretion of the trial court and should be exercised fairly and within the law.

9. This is a first appeal and it is required of this court to re-examine all the evidence that was tendered before the trial court, analyse and evaluate it and arrive at its own conclusions. The court however has to bear in mind that it neither saw nor heard the witnesses testify, a benefit which the trial court had. The court is guided by the decision in Okeno v Republic (1972) EA 32.

10. The appellant has alleged breach of his rights to fair trial under article 50 of the Constitution. Before addressing the other grounds of appeal, this court is of the view that the alleged breaches be considered first because if proved, it may determine the appeal.

11. The appellant alleges breach of article 50(2)(b)(g)(h)(j) of the Constitution. The said provisions are as follows:-“50(2)Every accused person has the right to a fair trial, which includes the right-(b)to be informed of the charge, with sufficient detail to answer it;(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly.(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.

12. I have seen the proceedings before the court. As respects sub article 2 (b), it is clear that the charge was read to the appellant. He denied the said charge and the matter proceeded to full trial. The charge sheet is on the file and it clearly discloses the parties and the offence charged. The contents of a charge sheet are provided for under 134 Criminal Procedure Code which provides as follows:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of specific offence or offences with which the accus ed person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

13. The charge that was read to the appellant was proper and complied with section 134 Criminal procedure Code.

14. As regards sub article 2 (g), it is required that the trial court inform the accused person of his right to counsel promptly so that the accused can make an informed decision whether not to procure the services of an advocate or may qualify to apply for legal aid from the committee on legal aid. The said right cannot be limited by dint of article 25 of the Constitution.

15. In Chacha Mwita v RepublicCriminal Appeal No 33 of 2019, J. Mrima said as follows of the above right.““Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett v Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.In South Africa in Fraser v ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied inPOCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….In Kenya, the Supreme Court in Petition No 5 of 2015 Republic -vs- Karisa Chengo & 2others [2017] eKLR while dealing with various aspects of the right to a fair hearing under article 50 of theConstitution stated as follows: -the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.

16. J Nyakundi in Joseph Kiema v Republic (2019) eKLR also added his voice when he said as follows:-……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced……

17. The court did not inform the appellant of his right to counsel as required. Failure by the court to comply with the said sub article renders the proceedings a nullity.

18. As to the right under such article 2 (h), one would only be entitled to an advocate assigned by the state at state expenses if it is demonstrated that substantial injustice would result. The said right is not automatic but is qualified in that one has to demonstrate that injustice will be suffered. The court in the case of David Njoroge Macharia supra – the Court of Appeal said expounded in substantial injustice as follows:-“Article 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a state appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”. Persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expenses.”

19. The Supreme Court in Republic v Karisa Chengo (supra) also expounded on the what substantial injustice means. The court said:-“In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expenses specifically. Inevitably, there will be instances in which legal representation at the expense of the State will bot be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a court ought to consider, in addition to the relevant provision of Legal Aid Act, various other factors which include:-(i)the seriousness of the offence;(ii)the severity of the sentence;(iii)the ability of the accused person to pay for his own legal representation;(iv)whether the accused is a minor;(v)the literacy of the accused; and(vi)the complexity of the charge against the accused.”

20. Whereas the appellant faced a serious charge of grievous harm that would have attracted at life imprisonment, it was not demonstrated that he did not understand the issues or that the case was complex or that he was not able to defend himself. The appellant did not demonstrate that he would suffer injustice if he proceeded without counsel.

21. Lastly, whether sub article 2(j) was breached, the court record speaks for itself. The appellant was arraigned in court on January 18, 2021 for plea and before the hearing commenced on March 23, 2021, the appellant had been supplied with witness statements on Febuary 1, 2021 over 1 ½ months before the hearing commenced. The appellant was aware of the charge he faced in good time to enable him prepare his defence. The right under sub article (2) (j)was not violated.

22. In the end, having found that the proceedings were a nullity for failure by the court to inform the appellant of his right under sub article 2 (g) I hereby quash the conviction and set aside the sentence.

23. The next question is whether the court can order a retrial. The principles to be considered when ordering a retrial were expounded in Ahmed Sumar v Republic (1964) where the court held as follows:-“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.”

24. In the instant case, the prosecution called a total of five witnesses. PW1 testified that he was assaulted at about 8:00am He saw the assailants. PW2 corroborated his evidence. PW3 and PW4 also corroborated PW1’s evidence as regards the injuries that he suffered. I find that the potentially admissible evidence is likely to result in a conviction.

25. The appellant was sentenced to five years in March 2022. He has not served a substantial part of it. Besides, the complainant suffered serious injuries and if indeed the appellant is found guilty, he should face the consequences. The appellant will not suffer any prejudice that the complainant would not. I find that this is a proper case for the court to order a retrial which I hereby do.

26. The appellant is hereby released to Kehancha police station to be produced before Kehancha senior principle magistrate’s court for fresh plea before another magistrate other than hon. Karimi, who wrote the judgment in this case. In the event the appellant is found guilty, the sentence served herein must be taken into account. The trial court should expedite the hearing since this is a retrial.

27. Mention before Kehancha at on senior principal magistrate’s court on December 19, 2022.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 15TH DAY OF DECEMBER, 2022. R WENDOHJUDGEJudgment delivered in the presence ofMr Maatwa, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant