[2014] KEHC 2823 (KLR)
The court found that the trial magistrate who took over the case failed to comply with Section 200(3) of the Criminal Procedure Code by not informing the appellants of their right to have previous witnesses re-summoned and re-heard. This omission prejudiced the appellants and amounted to a denial of their rights....
Source-derived case information.
- Citation
- [2014] KEHC 2823 (KLR)
- Parties
- Appellant: David Kiema; Appellant: John Muthama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 & 68 of 2013
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction quashed, sentence set aside, retrial ordered
- Judges
- LN Mutende
- Legal Topics
- Robbery With Violence, Criminal Procedure Code Section 200, Retrial Principles, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kiema
Appellant
John Muthama
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial court failed to comply with Section 200 of the Criminal Procedure Code, thereby prejudicing the appellants.
- 2 Whether the conviction was based on credible and admissible evidence.
- 3 Whether a retrial should be ordered in the interests of justice.
Ratio Decidendi
The court found that the trial magistrate who took over the case failed to comply with Section 200(3) of the Criminal Procedure Code by not informing the appellants of their right to have previous witnesses re-summoned and re-heard. This omission prejudiced the appellants and amounted to a denial of their rights. The court held that, in such circumstances, the conviction could not stand. Applying the principles from Fatehali Manji v Republic, the court determined that a retrial was appropriate because there was sufficient admissible evidence to justify a new trial and the interests of justice required it. Consequently, the conviction was quashed, the sentence set aside, and a retrial...
Court Disposition
conviction quashed, sentence set aside, retrial ordered
Orders
- The conviction is quashed and the sentence set aside.
- The appellants shall be produced before the Principal Magistrate’s Court at Kithimani on the 18th September, 2014 for retrial.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NOS. 61 AND 68 OF 2013 (CONSOLIDATED)
DAVID KIEMA ..….....................................................1ST APPELLANT
JOHN MUTHAMA ..…............................................... 2ND APPELLANT
VERSUS
REPUBLIC …..................…......................................... RESPONDENT
(Being appeal from the original conviction and sentence in Kithimani Senior Resident Magistrate's Court Criminal Cases No. 468 of 2011 by
Hon. D.G. Karani – PM on 1/11/2012)
(Before Beatrice Thuranira Jaden J. and L. N. Mutende J.)
J U D G M E NT
David Kiema (1st appellant) and John Muthama (2nd appellant) were jointly charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code.
Particulars of the offence were that on the 20th day of May 2011 at Kitheuni sub location, Ikombe location in Yatta District within Machakos County, jointly robbed Peter Mutuku Musyokiof a catapult, a torch, N.H.I.F. card, a note book and cash Kshs.270/= all valued at Kshs.545/= and immediately before the time of such robbery beat the said Peter Mutuku Musyoki.
Both appellants were tried, convicted and sentenced to suffer death. Being aggrieved by the conviction and sentence thereof they appeal on grounds that the learned trial magistrate erred in law and fact by:
Failing to comply with Section 200 of the Criminal Procedure Code.
Convicting on evidence that was not credible.
Relying on a charge sheet that was bad for duplicity.
Convicting on identification evidence that was not free from error.
Brief facts of the case are that Peter Mutuku Munyoki (PW5) went to Landmark Bar to purchase cigarettes. While leaving he was followed by the appellants who had been at the bar. They attacked him, took away his catapult, notebook, a club (rungu), cash Ksh.270/= and in the process they injured him. He sustained a compound fracture of the right lower limb. They were arrested and stolen items were recovered.
In their defence the appellants denied having committed the offence. They gave an account of a sequence of events prior to their arrest.
At the hearing the appellants relied on their written submissions.
Mrs. Gakobo,the learned Senior State Counsel for the state conceded to the appeal on account of non-compliance with Section 200 of the Criminal Procedure Code. She however asked the court to order a retrial considering the fact that there was sufficient evidence to secure a conviction.
We have carefully subjected the entire lower court record to scrutiny. It is apparent that the case was initially heard by A.W. Mwangi, Principal Magistratewho recorded part of the evidence in the trial. Having been transferred to another area of jurisdiction, D.G. Karani, Principal Magistrate took over the matter but failed to comply with Section 200(3) of Criminal Procedure Code. The appellants were not informed of their right to have witnesses who had testified re-summoned and re-heard. It is rightly asserted that the appellants rights were denied.
Having been prejudiced, the court may order a retrial in accordance with Section 200(4) of the Criminal Procedure Code.
The principle upon which an order for retrial may be granted was stated in the case of Fatehali Manji versus Republic (1966)E.A. 343 as follows:
“In general a retrial will be ordered only when the original trial was illegal or defective…even where a conviction is initiated by a mistake of a trial court of which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interest of justice require it”.
Such an order would also be considered if the court opines that there is admissible evidence that would secure a conviction.
Having considered the evidence, we find that this is a proper case for a retrial. The conviction is quashed and the sentence set aside. The appellants shall be produced before the Principal Magistrate’s Court atKithimani on the 18th September, 2014 for retrial.
In the meantime they will be held in custody.
………………………………. ……………………………….
B. THURANIRA JADEN L. N. MUTENDE
JUDGE JUDGE
DATED, SIGNEDand DELIVERED at MACHAKOS this9THday of SEPTEMBER, 2014.
L.N. MUTENDE
JUDGE