[2006] KEHC 1051 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Criminal Appeal 722, 723 & 724 of 2003

(From original conviction(s) and Sentence(s) in Criminal, case No. 3772 of 2002 of the Senior

Principal Magistrate’s Court at Thika (Mr. Kanyangi – SPM.)

DANIEL CHEGE KAMUNDIA…….......................................………………..…….…..APPELLANT

VERSUS

REPUBLIC…………….................................……… ………………………….…....RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 723 OF 2003

(From original conviction(s) and Sentence(s) in Criminal, case No. 3772 of 2002 of the Senior Principal Magistrate’s Court at Thika (Mr. Kanyangi – SPM.)

ELIUD CHEGE WANUTHUITA……..........................................……………..…….…..APPELLANT

VERSUS

REPUBLIC…………………… ……………..................................…………….…....RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 724 OF 2003

(From original conviction(s) and Sentence(s) in Criminal, case No. 3772 of 2002 of the Senior Principal Magistrate’s Court at Thika (Mr. Kanyangi – SPM.)

GEORGE KAHINGA WA NJOKI.....………….......................................……..…….…..APPELLANT

VERSUS

REPUBLIC…………………..................................… ………………………….…....RESPONDENT

J U D G M E N T

The Appellants, DANIEL CHEGE KAMUNDIA(hereinafter referred as the 1st Appellant), ELIUD CHEGE WANUTHUITA(2nd Appellant) andGEORGE KAHINGA WA NJOKI(3rd Appellant) were the 2nd, 3rd and 1st accused person in the court below where they together with two others were jointly charged with two counts of ROBBERY WITH VIOLENCEcontrary to Section 296(2) of the Penal Code. The 3rd Appellant was also charged with a third count of BEING IN POSSESSION OF AN IMITATION FIREARM contrary to Section 34(1) of the Firearms Act. The Appellants were convicted after a full trial and sentenced to death in count 1 but acquitted in count 2. In addition, the 3rd Appellant was convicted in count 3 and sentenced to 10 years imprisonment. Being aggrieved by the conviction, they lodged these appeals to this court, which we have consolidated for ease of hearing since they arose out of the same trial.

During this appeal, the 1st and 3rd Appellants appeared in person. Mr. Kilonzo represented the 2nd Appellant. Mrs. Gakobo, State Counsel appeared for the State and opposed all the three appeals.

Going directly to the analysis and evaluation of the evidence adduced before the lower court, the Complainant in count 1 was AGNES DONSON who was PW1. Her evidence was to the effect that at 2. 00 a.m. on the night of 17th and 18th March 2002, as she and her husband MICHAEL PW2 slept, they heard their workers screaming. Both woke up from bed. Their after, a man called her by name and commanded her to open the door and threatened to shoot if she did not. Her bedroom window was broken and five men entered their bedroom through it. By then MICHAEL, PW2 had switched on the generator and lights were on in the house. MICHAEL saw some people break and enter through the main door. About 12 people entered. From MICHAEL the robbers took 100 dollars and Kshs.,32,000/-. They also stole clothes, 2 mobile phones, CD player 2 cameras, 15 CDS, 12 rings, 4 lamps and other valuables. PW3, MATHEW, the Complainant in count 2 said he was in his house the same night when people broke into his house and stole his wristwatch, shoes and trousers. PW3 had lighted his lamp and said he saw the 2nd and 3rd Appellants and that they beat him until he lost consciousness. He woke up in hospital where he was admitted for two days. AGNES, MICHAELand MATHEW were called to identification parades five months after the incident. AGNESand MICHAELidentified all the 3 Appellants while MATHEW identified the 2nd and 3rd Appellants.

The Appellants denied the charges in their unsworn defences. In their defences, each Appellant alleged that the police had tortured them as a result of which the 3rd Appellant signed a confession he never made and the 1st Appellant participated in a parade even though he had been exposed to the two Complainants in the case.

The 1st Appellant has raised five grounds of appeal in his supplementary petition as follows: -

One, that the learned trial magistrate erred in failing to observe the provisions of Section 211 of the Criminal Procedure Code.

Two, that the prevailing circumstances when the visual identification was made were not positive.

Three, the evidence of the prosecution was contradictory and could not support a conviction.

Four that the prosecution case was fatally affected by defects and irregularities in the case.

Five that the 1st Appellant’s defence was not given due consideration.

The 2nd Appellant filed with leave of court an amended petition of appeal with 21 grounds of appeal. Having considered these grounds, we found them argumentative and repetitive. We have summarized them as follows: -

In regard to count 3, the learned trial magistrate erred in convicting the 2nd Appellant on a charge which did not disclose an offence and on evidence that was insufficient.

Two, that the learned trial magistrate failed to follow mandatory provisions of Section 214 of the Criminal Procedure Code.

Three, the ingredients of the offence of robbery with violence were not met.

Four, that the prosecution gave contradictory and insufficient evidence.

The third appellant relied on supplementary grounds of appeal in which he raised four grounds.

One, that the learned trial magistrate erred in finding that the evidence of identification adduced by the first and second prosecution witnesses was positive.

Two, that learned magistrate failed to consider that the 3rd Appellant arrest was actuated by PW7 and not the Complainants.

Three, that the charges were not proved as required.

Four that the Appellant’s defence was disregarded.

The 1st and 2nd Appellants raised a ground each on a point of law which we intend to consider first. The 1st Appellant raised the issue of non compliance with Section 211 of the Criminal Procedure Code submitting that the learned trial magistrate failed to comply with the same before placing him on his defence. Section 211 of the Criminal Procedure Code provides: -

“211 (1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, court shall again explain the substance of the charge to the accused, and shall inform, witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.”

We have perused the record of the proceedings of the lower court and find that at page 27 the following is recorded.

“Accused present

Interpretation – English/Swahili

Accused 1

Says: I will make unsworn defence statement and no witness”.

Accused 2

Says: I will make unsworn statement and call a witness.”

Accused 3

Says: I will make sworn statement in defence and call no witness

Mr. C.O. KANYANGI”

We find that even though the record does not indicate in writing that Section 211 of the Criminal Procedure Code was complied with, we are satisfied that the provisions of that Section were explained to the Appellant and that they were given an opportunity to make an election of how they intended to make their defences and that they did elect. We find that failure to write in the proceedings that the court had read over and explained provisions in Section 211 of the Criminal Procedure Code to the Appellants was irregular but that no prejudice or failure of justice was occasioned and that therefore the irregularity was curable under Section 382 of the Criminal Procedure Code. The second ground raising a point of law is found in the petition filed by Counsel for the 2nd Appellant as ground 12 of the appeal. In this ground, Mr. Kilonzo challenges the failure by the trial court to comply with Section 214 of the Criminal procedure Code. counsel in his submission stated that on 24th January 2003, the trial magistrate allowed the substitution of the charge facing the Appellants but failed to comply with Section 214 of the Criminal Procedure Code by giving the Appellants their right to re-call witnesses if they so wished. Counsel relied on several cases but among them the best case on the issue, is YONGO vs. REPUBLIC [1983] KLR 319. Counsel submitted that failure to comply with the section was fatal to the prosecution case.

Mrs. Gakobo for the State submitted that even though the trial court did not comply with the provisions of Section 214 of the Criminal Procedure Code, the same did not prejudice the Appellants and did not occasion any failure of justice. Counsel distinguished LUDOVICO vs. REPBLIC 1967 EA 673 with instant case. We are not concerned with that case and find no need to consider the submissions made by Mrs. Gakobo in that regard. Mrs. Gakobo conceded that if the court followed the principles in Yongo vs. Republic Case Supra, and found that the Appellants suffered prejudice due to the said failure, then counsel argued, a retrial should be ordered.

Section 214 of the Criminal Procedure Code provides as follows: -

S214 (1) Where at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alternation of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.

(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.”

We have perused the record of the lower court proceedings and find that indeed, on the 24th January 2003 (page 22 of the proceedings) the prosecution successfully applied to amend the charge. The charge was then read to the Appellants who pleaded not guilty. The learned trial magistrate, without informing the Appellants of their right under Section 214 of the Criminal Procedure Code proceeded to take the evidence of the remaining prosecution witness. At the time the amendment of the charge was made, the prosecution had called six witnesses who included both Complainants and key witnesses in the case. The effect of the amendment was to increase the counts from 1 to 3. Issue is whether the failure to comply with Section 214of the Criminal Procedure Code rendered the proceedings a nullity?

In Yongo vs. Republic, Supra, POTTER, HANCOX JJAand CHESONI Ag. JA held: -

“2. Where the charge is defective either by misdescription or at variance with the evidence at the trial, the court has the power to order an amendment or alteration of the charge provided:

a)the court shall call upon the accused to plead to the altered charge, and

b)the court shall permit the accused, if he so requests, to re-examine and recall witnesses.

It is mandatory requirement that the court must not only comply with the above conditions, but it shall record that it has so complied. The trial magistrate failed in not recording whether there had been compliance with the proviso to section 214 of the Criminal Procedure Code (Cap 75)

3. The appellant should have been given the opportunity to further question the prosecution witness and it could not be said whether the failure to give him that opportunity occasioned no prejudice to him as such further questioning might have caused the trial magistrate to form a different view of the witness’ evidence.”

The cited case is authoritative and is in all falls similar to the instant case. The provisions of Section 214 of the Criminal Procedure Code are couched in mandatory terms ousting the courts discretion in determining whether or not to comply with them. The intention of the draftsman in making this law was to protect an accused person during his trial to ensure that he gets a fair hearing. Failure to put on record that the learned trial magistrate had complied with the provisions aforesaid and the failure to comply meant that the Appellants were denied an opportunity to re-call and cross-examine the witnesses. That also meant that the nature of the charges the Appellants faced had changed at a late stage of the proceedings and the prosecution had introduced two new counts against the 2nd Appellant and one new count against the 1st and 3rd Appellant. It cannot be said that the Appellants did not suffer any prejudice. Had they been allowed to recall the witness for further cross-examine the learned trial magistrate may well have formed a different view of the evidence and may have arrived at a different conclusion. We find that the non-compliance with the provisions of Section 214 of the Criminal Procedure Code occasioned a failure of justice and that the proceedings which followed were a nullity. The convictions entered in this case are accordingly quashed and the sentence set aside.

The issue that remains for consideration is whether a retrial should be ordered in the circumstances of the case? The considerations which should be kept in mind before the appellate court orders a retrial are well settled. A retrial can be ordered where the original trial, like in this instant case, was defective. SeeAhmed Sumar vs. Republic 1964 EA 481;

A retrial should not be ordered if such order may cause prejudice to an accused person and if the interests of justice do not require it. See Manji vs. Republic 1966 EA 343

An appellate court should not order a retrial unless upon consideration of admissible or potentially admissible evidence a conviction may result. See MWANGI vs. REPUBLIC 1983 KLR 522.

We have taken all these principles into consideration. Without belabouring the issues the convictions in count 1 in this case were predicated upon two issues; one identification of the Appellants by three witnesses and two a retracted confession by the 2nd Appellant. On the confession, if an order for retrial were made, it will not be admissible in evidence in view of the amendments to the Evidence Act made by virtue of L.N. No. 5 of 2003. The only evidence that will remain is that of identification. The two Complainants identified the 1st and 3rd Appellants in identification parades conducted by PW5 five months after the robbery. Each identified by each Complainant did not serve as corroboration of the other Complainants evidence since they identified the respective Appellants for different offences. The Appellants were acquitted in count 2 where PW3 was the Complainant. That means PW3’s evidence is of no use to the case. The evidence of PW1, Agnes would only have support from the dock identification by her husband PW2. That support cannot serve as corroboration to PW1’s evidence being worthless in the circumstances.

As for the evidence of PW1, Agnes, her evidence of identification was made under difficult circumstances being at night. There was no evidence that Agnes had at any time prior to the Appellants’ arrest and after the robbery indicated her ability to identify any of the Appellants. The identification in the parade conducted five months later in the circumstances needed to be corroborated by other evidence whether direct or circumstantial that would point to the guilt of the Appellants. There was no other evidence available to corroborate the evidence of Agnes. We find that a conviction may not result if a retrial were ordered in regard to count 1.

In regard to count 3, as learned counsel for the 2nd Appellant submitted the evidence adduced in support of the charge fell short of the standard required. The prosecution needed to show that at the time the 2nd Appellant was arrested, he had in his possession the imitation weapon intending to use it to commit an offence or in the course of committing one. These ingredients were neither alluded to nor proved. The charge cannot be sustained with the available evidence. In the circumstances, we find that no conviction will result if an order for retrial were made, that such order will cause the Appellants prejudice and suffering and that the interests of justice does not require it.

We decline to order a retrial. We order that the Appellants be released forthwith unless they are otherwise lawfully held.

Dated at Nairobi this 26th day of October 2006.

…………………………

LESIIT, J.

JUDGE

…………………………

MAKHANDIA

JUDGE

Read, signed and delivered in the presence of;

Appellant(s) present

Mr. Kilonzo for the 2nd Appellant

Mrs. Gakobo for State

Tabitha – Court clerk

…………………………

LESIIT, J.

JUDGE

…………………………

MAKHANDIA

JUDGE