[2017] KEHC 1767 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 49 OF 2017

ELIJAH GICHANGI…… APPELLANT/APPLICANT

VERSUS

PROSECUTION……........................RESPONDENT

R U L I N G

1. This is a ruling on an application dated 14/11/2017 seeking for orders that the applicant be admitted to bail pending appeal. It is supported by the affidavit of Wandugi K.K. Karathe an advocate of the High Court of Kenya on record for the applicant.

2. It is deposed that the applicant had earlier been charged before the Embu Principal Magistrate in Sexual Offences Case No. 17 of 2017 with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act and alternative charge of indecent act with a child contrary to Section 11 (1) of the same Act. He was sentenced and convicted to serve life imprisonment.

3. The applicant has lodged this appeal against both the conviction and sentence for he was aggrieved by the judgment. It is stated that the judgment is grossly erroneous and that the conviction is not supported by the facts and evidence. Further that the sentence imposed is undeserved and that the applicant is serving an unjust sentence. It is stated that there were serious misdirections made by the court which makes the conviction unsafe and improper.

4. The applicant is said to be a senior minister of the Anglican church and stands to suffer for having been wrongly convicted. In paragraph 12 of the affidavit, the counsel lists several issues which he plans to ventilate during the hearing of the appeal.

5. The application was opposed by the respondent relying on the affidavit of the prosecution counsel Brenda Nandwa. She deposes that the prosecution adduced sufficient evidence against the applicant which proved the offence of defilement beyond any reasonable doubt. There were no inconsistencies in the witness testimonies and that the ingredients of the offence were satisfied. The judgment of the court was not at all erroneous and no misdirections were made by the court.

6. The applicant has failed to demonstrate that his appeal has high chances of success. He has not shown any exceptional or unusual circumstances to justify releasing him on bail.

7. Mr. Wandugi submitted that the charge sheet was fatally defective and did not contain sufficient particulars for the applicant to know how to prepare his defence. It consisted of a general statement being the words: on the material dateinstead of giving the date of the offence. This flaw is evident in the evidence of the witnesses who did not give the specific date of the offence. In its judgment the court failed to address the issue of lack of failure to state date of the offence.

8. At the close of the case the parties filed written submissions which have no force of law and excluded the participation of the applicant from the proceedings. He cited the case of ROBERT FINALI AKHUYA VS REPUBLIC Criminal Appeal No. 42 of 2002 where it was held that except with the consent of the accused he cannot be excluded from the proceedings by way of filing written submissions and must be given a fair hearing.

9. In the case of REBECCA NABUTOLA VS REPUBLIC Misc. Criminal Application No. 445, 448 and 452 of 2012 the same principle on written submissions in a criminal case was discussed. Mr. Wandugi argued that the use of written submissions is a complete departure of Article 50 of the Constitution which provides for fair hearing.

10. The applicant faulted the trial magistrate for referring to his defence as wanting and untenable. This amounted to shifting the burden of proof to the accused which is a violation of the right to fair hearing. The alibi defence of the applicant was not considered.

11. Ms. Nandwa submitted that the charge sheet was not defective for failure to state the date because the witnesses gave the evidence that supported the charge. According to the respondent, the written and oral submissions have the same content and are in no way a violation of Article 50 of the Constitution.

12. The respondent further argued that the defence of the applicant was well considered and that there was no shifting of the burden of proof. Further that there were no misdirection by the court and that the conviction was based on the overwhelming evidence adduced by the prosecution.

13. Ms. Nandwa further argued that it has not been demonstrated that the appeal has high chances of success and that no exceptional circumstances have been shown to justify granting bail pending appeal.

14. I have considered the grounds supporting thisapplication and I will make a few observations. It was alleged that the charge was defective in that it does not state the specific date of the offence. It is worded thus in part:-

“On or before the 19th day of April 2016…..”

15. The other particulars of the charge have not been challenged save the date. It is my considered view that the mere failure to state the specific date does not render the charge defective. What will make or break the prosecution’s case is the evidence adduced for proof of the time or date of the alleged offence.

16. The applicant dropped the ground of non-compliance with Section 200 of the Criminal Procedure Code (CPC). It is noted that this case was heard by one magistrate from the beginning to the end. In the absence of a succeeding magistrate, the issue of Section 200 of the CPC does not arise.

17. It was argued that filing of written submissions excludes the accused from participation in the case and it was therefore wrong for the trial magistrate to allow filing of submissions for it amounted to violation of the applicant’s right to fair hearing under Article 50 of the Constitution.

18. The applicant relied on the two authorities cited in the foregoing paragraphs. These are of the REBECCA NABUTOLA case (Supra) and that of ROBERT FINALI (Supra).

19. I have perused the two decisions. I would pre-empt the appeal should I find or not that the facts of this case are relevant, or state that I agree or disagree with the findings irrespective of the status of the courts concerned.

20. All I can state for the time being is that the issue is arguable and it will be explored further during the hearing of the on appeal.

21. The applicant argued that the burden of proof was shifted to him when the magistrate said that he should have produced the minutes of the church meeting he said he had attended at the time the offence was allegedly committed. In my view this is an issue to be canvassed during the hearing of the appeal to avoid pre- empting this ground of appeal.

22. The trial magistrate was faulted due to what the applicant referred to as misdirections and inclusion of extraneous matters.

23. I have considered all the foregoing issues and reach a conclusion that the applicant has demonstrated that his appeal has chances of success.

24. I am inclined to allow this application for bail pending appeal which I hereby do.

25. It is hereby ordered that the applicant be and is hereby released on a bond of KShs.300,000/= with one suitable surety of a like amount.

26. The application stands allowed.

DELIVERED, DATED AND SIGNED AT EMBU THIS 6TH DAY OF DECEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Nandwa for respondent

Mr. Momanyi for Wandugi for the applicant