[2007] KECA 268 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI

Criminal Appeal (Appli) 51 of 2004

1. ELIZABETH GITIRI GACHANJA

2. DAVID KARUGU MWANGI

3. WILSON THIRIMBI MWANGI

4. ROSE NJOKI MURUATETU

5. ANNA NGONYO

6. STEPHEN KAGIA ALIAS BLACKIE

7. FRANCIS KARIOKO MURUATETU &

8. STEPHEN WAMBUA KAMAU………..………APPELLANTS

AND

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

(Appeal from a judgment of the High Court of Kenya

Nairobi (Mbogholi, J) dated 12th March 2003

in

H.C. Cr. Case No. 40 of 2000)

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RULING OF THE COURT

Criminal Appeal No. 51 of 2004 in which eight appellants namely Elizabeth Gitiri Gachanja, David Karugu Mwangi, Wilson Thirimbi Mwangi, Rose Njoki Muruatetu, Anna Ngonyo, Stephen Kagia alias Blackie, Francis Karioko Muruatetu, and Stephen Wambua Kamau are appealing from the judgment of the High Court of Kenya at Nairobi (Mbogholi Msagha J.) dated 12th March 2003 was scheduled to be heard before us on 28th May 2007. Before that date, and precisely on 8th May 2007, the seventh appellant, through his advocates, Ondieki & Ondieki advocates, filed what they referred to as a preliminary objection. That preliminary objection was couched in the following terms:

“PRELIMINARY OBJECTION

Take notice that at the hearing of this appeal on 28th May 2007, the 7th appellant shall move the Court that the whole trial in this matter was a nullity since there was no judgment as contemplated under section 169 (1) (2) of the Criminal Procedure Code an omission that was prejudicial to the rights of the appellant as envisaged by section 77 of the Constitution.

We urge this Court to order a mistrial and direct that the matter be tried de novo before another Judge in the superior court.”

On 28th May 2007, the appeal came up for hearing and true to his word, Mr. Ondieki sought to address us and was allowed to argue that preliminary point. Professor Muigai, the learned counsel for the first appellant, and Mr. Nyachoti, the learned counsel for the 2nd, 3rd, 4th, 5th, 6th and 8th appellants, both supported Mr. Ondieki’s views and all addressed us at length on that preliminary objection which was in the main that the proceedings before the superior court leading to the alleged judgment in which the superior court found all the appellants guilty, convicted them and sentenced them to death was a nullity on the ground that the learned trial Judge did not sign the judgment that was apparently read to the court and which ended in the appellants being pronounced guilty. Mr. Ondieki submitted that what appeared in the typed record at what he called “first page 39” of the record as the signature of the learned trial Judge at the end of the judgment could not be correct as the proceedings continue into what he called the “second page 39” of the record and at that second page 39 of the record, there was a logical flow of proceedings showing that that page reflected the authentic proceedings, yet, that part of the record showed clearly that the judgment read was not signed by the trial court. He asked us to ignore the signature of the learned Judge at the end of the “first page 39” of the record as that signature appeared to have been “sneaked” into the record illegally. He also referred to the handwritten record of the relevant parts of the judgment and invited us to accept that even the handwritten records show that the alleged judgment in which the appellants were convicted was not signed. That being the case, the appellants’ trial was vitiated by that important and serious omission and their rights as enshrined in the constitution at section 77 were violated. He urged us to declare a mistrial and order a retrial or better still, to consider the period the appellants have been in custody since they were arrested and to release them after quashing their conviction.

During the hearing, at the prompting of the Court, an apparent original typed copy of the judgment duly signed by the trial Judge and bearing his apparent original signature was availed from the court registry. Mr. Ondieki, having seen the same still contended that that apparent original signature in the apparent original typed copy of the judgment was sneaked into the record and was not genuine. He further maintained that the appellants were entitled to a signature on the handwritten judgment as that was the true original judgment. Professor Muigai, while supporting Mr. Ondieki as we have stated, preferred not to associate his submission with the allegations that the trial Judge’s signature could have been sneaked into the record. His stand was that there was doubt as to whether the learned Judge signed the judgment which he read out in Court. There also appeared a doubt as to whether the sentence awarded was signed by the learned Judge. That being the case, he urged us to resolve that doubt in favour of the appellants, declare a mistrial and release the appellants in view of the total period for which they have been in custody. Mr. Nyachoti referred us to rule 61 of the Court’s Rules and submitted that the record before the Court clearly showed that the trial Judge did not sign the judgment that he read and in which he convicted the appellants and sentenced them to death. He, likewise, asked that the appellants be released at this stage.

Mr. Ondieki and Mr. Nyachoti referred us to several authorities which we have perused and considered together with the submissions and the record. Mr. Wohoro, the learned Senior Principal State Counsel opposed the preliminary point arguing that a preliminary point or preliminary objection can only be taken when facts upon which it is based are not in dispute. He submitted that where facts are in dispute, like in the present case where the parties have to invite the Court to peruse the record of appeal and make an inference, the preliminary objection cannot be entertained in law. In his view, there was a valid judgment which was properly signed by the trial court and that is the reason why the appeals were preferred. These are matters of facts which can only be ventilated at the full hearing and a preliminary objection is premature; he contended. He, however, agreed that if as a matter of fact the court found that there was no judgment duly signed by the trial court, then the provisions of section 382 of the Criminal Procedure Code would not be invoked as the omission would go to the root of the entire matter. In such a case, he would seek a retrial.

We have considered the rival submissions, the authorities to which we were referred and the law. We have no doubt in our mind that where the facts are clearly undisputed that the trial court has not complied with the provisions of section 169 (1) and (2) of the Criminal Procedure Code, the trial would be vitiated. That section provides:

“169 (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.

(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.

(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.”

That legal principle which, as we have stated, is certain, is only applicable in a clear case where it is certain the judgment has not been signed by the trial court or by the appellate court as the case may be. That brings us to the next point which we think is crucial. That is at what stage is the court hearing a criminal appeal, like we are faced with in the appeal before us, to ascertain whether or not the trial court or the appellate court has not complied with the above legal requirements? In a criminal appeal like the one before us, the answer is to us clear. It is when we are considering the entire appeal when we, as a first appellate court, are enjoined to consider, analyse and evaluate the evidence and the entire record that we would investigate whether or not the trial court has complied with all the requirements such as analysing the facts before it, evaluating the same and applying the proper legal principles as well as complying with the required procedural rules. That is when, if a point such as is now being canvassed is raised, we would consider it after all the facts are properly investigated afresh as is a requirement on a first appeal. That would require that the matters complained of by the appellants, whether they be on matters of procedure or improper analysis of the evidence or misdirection on points of law are properly set out in the memorandum of appeal. We have gone through all the memoranda of appeal before us in respect of each appellant. We note that all the appellants have raised the non-compliance with section 169(1) of the Criminal Procedure Code as one of the grounds of appeal except the first appellant.

We were not referred to any authority on the jurisdiction of an appellate court in a criminal matter to entertain what is called preliminary objection, particularly one made by the appellant himself in his own appeal, and we are yet to find one. This is why at the beginning of this ruling, we referred to what is before us as “what they referred to as a preliminary objection”. Furthermore, we cannot see how an appellant, whose appeal is against a judgment of the trial court can file an objection to the same judgment! If he is serious that it is not in law a judgment, then ipso facto his appeal against the same “judgment” is also not an appeal as there would be no judgment to appeal against.

We think the correct procedure should have been for the appellants, if they felt seriously that the alleged judgment was not signed, to prefer that ground as a ground of appeal. Having done so, when the appeal comes up for hearing, they would raise it as the first point in the appeal. As matters stand now, we agree with Mr. Wohoro that, as there is a dispute as to whether the alleged judgment was signed or not, a preliminary objection or preliminary point of law, whatever it may be called, cannot be raised on the basis of those disputed facts. We may borrow from the sentiments expressed by Law J.A. (as he then was) in the well known civil case of Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors Ltd. (1969) EA 696. He said:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

In the matter before us, the appellants say the judgment of the trial court was not signed and so the proceedings are a nullity. The prosecution says the judgment was signed and so the proceedings are proper. There is a judgment written in the Judge’s hand which was not signed. There is an original typed judgment which bears the Judge’s original signature and there are two copies of the judgment in the record of appeal, both of which are numbered “39” and have been referred to as “first page 39” and “second page 39” respectively. Whereas the former is signed, the latter is not signed. These facts are in conflict and this being a first appellate court, it will be its duty to revisit the same facts afresh, analyse them and evaluate them before coming to a conclusion subject to conditions clearly spelt out in the case of Okeno vs. Republic (1972) EA 32. That exercise certainly cannot be undertaken at this stage. Hence in law, a preliminary objection in this case is untenable. As we have indicated above, we doubt whether such objection can be raised in a criminal appeal. We decline to sustain the preliminary objection. Let the appeal proceed to full hearing.

Before we conclude the ruling however, we need to ensure that no further or more impediments will stand on the way of the appeal when it next comes up for hearing. We noted that there were certain matters that required rectification on the record of appeal. These were first, pages in volume 3 could easily be confused with pages in volume 1 of the record. We direct that the paginating should be done in a running order such that the pages are numbered from No. 1 in volume 1 to the last page in volume 3. Secondly, pages 59, 60, 61 and 62 in volume 3 are illegible. Let legible pages be supplied. Thirdly, the English translation of the extra judicial statement at page 278 volume 3 is not complete. Apparently, page V of that statement is at page 255B volume 3. That is irregular, but even if that part at page 255B volume 3 was considered, still the translation is incomplete. Let a complete English translation be filed. Lastly, we have not decided on the question of whether the judgment appealed from was dully signed by the trial court and the effect of the same as we have felt the matter was raised prematurely and is in law not a preliminary point. If the first appellant is minded to have it as one of her points in full appeal, then the first appellant is allowed to file a supplementary memorandum of appeal raising it.

In the result, the preliminary objection is rejected. We order the full appeal to proceed to hearing.

Dated and delivered at Nairobi this 6th day of July, 2007.

P.N. WAKI

………………………….

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

……………………………

JUDGE OF APPEAL

W.S. DEVERELL

…………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR