[2017] KEHC 7015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 98 OF 2015

CONSOLIDATED WITH HCRA NO. 99 OF 2015

GEOFREY MURIITHI Alias GIKUNDI..................... 1ST APPELLANT

ROBERT KINYUA PHILIP........................................2ND APPELLANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION...................RESPONDENT

J U D G M E N T

1. The appellants were jointly charged and convicted by Runyenjes Principal Magistrate Hon. B.M. Kimemia with the offence of preparation to commit a felony contrary to Section 308(1)of the Penal Code and sentenced to serve eight (8) years imprisonment. The appellants filed separate appeal Nos. 98 and 99 both of 2015 which were consolidated.

2. The petitions of appeal contain three (3) grounds of appeal which are almost identical to both appellants. Firstly it is contended that the trial magistrate conducted an unfair trial by taking evidence in the absence of the appellants. Secondly, that the trial magistrate convicted them on the evidence from a single source, that is of three police officers PW1, PW2 and PW3. Thirdly, that the appellants were not supplied with witness statements thus violating their constitutional rights.

3. The appeal was argued by way of written submissions filed by the parties.

4. The appellants in their submissions explain their grounds of appeal and urged the court to declare that the trial was not fair for their rights were violated. Based on this conviction, the appellants argued that it is in the interest of justice that the convictions be quashed, sentences be set aside and a retrial be ordered.

5. Ms. Nandwa for the respondent opposed the appeal on grounds that the court was determined to conduct the trial in the presence of the appellants. The appellants became uncooperative forcing the court to invoke Section 194 of the Criminal Procedure Code when they voluntarily walked out.

6. The appellants told the court that they wanted to be absent during trial before walking out of the court room. The state argued that law supports the decision of the court to proceed with the trial even in the absence of the accused persons if their conduct makes it impossible for the trial to proceed. The state contends that the rights of the accused person were not violated during the trial.

7. The issues for determination in this appeal as follows:-

(i)Whether the rights to a fair trial under Article 50(2) (f) of the Constitution were violated by holding thetrial in absence of the appellants.

(ii)Whether the rights of the accused persons for a fair trial under Article 50(20)(j) were violated by failingto provide witness statements.

(iii)Whether the case against the appellants wasproved beyond any reasonable doubt to sustain aconviction.

8. The duty of the 1st appellate court was explained by the Court of Appeal in the case of KARIUKI KARANJA VS REPUBLIC [1986] KLR 190 that:-

''On first appeal from a conviction by a judge or magistrate, the appellant is entitled to have the appellate court's own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit.''

9. Firstly, the court will deal with the issue of law of whether the rights of the appellants were infringed during the trial.

10. Briefly, the history of this case is that the appellantswere jointly charged at Runyenjes Court with the offence of preparation to commit a felony. Before the SeniorResident Magistrate Hon. P. Nandi the appellants refused to take plea and said they had no faith in that court. The prosecution withdrew the case under Section 87(a) of the Criminal Procedure Code and registered it in Embu Chief Magistrate court.

11. On 4/06/2015 and 5/06/2015 the appellants appearedbefore Hon. S.K. Mutai and Hon. Oigara respectively andraised issue which frustrated the taking of plea. Hon.Oigara referred the matter to the Chief Magistrate Hon.M.N. Gicheru for directions. The appellants had saidthey had no faith in the two courts without giving anyreasons.

12. In 9/06/2015, the prosecutor informed the court that the appellants were now facing two charges as opposed tothe single charge as it was before Runyenjes court. The2nd count was for refusal to allow fingerprints to be takenby police in due execution of duty contrary to Section55(5) as read with Section 103(a) of the National PoliceService Act. The prosecutor asked the court to warn the accused to desist from being confrontational andcooperate with the court.

13. The plea was taken on 10/06/2015 and a plea of not guilty was entered for each of the accused person in respect of Count I and that of guilty for Count II.

14. The accused persons said they wanted their case heard at Runyenjes. The file was therefore sent to Principal Magistrate Runyenjes for disposal with the followingorder:-

“Now that the accused are willing to have their case heard at Runyenjes Law Courts, I direct that the file be dispatched thereto. Mention on 15/06/2015. In the meantime accused be remanded at Runyenjes Police Station and to have their fingerprints taken. If the accused refuse to have the fingerprints taken again, necessary force to be used.”

15. On 17/06/2015 before Hon. P. Nandi at Runyenjes, the court was informed that the appellants had cooperated with the police in taking their fingerprints. The second count was withdrawn under Section 87(a) of the CPC. The plea was taken afresh as required by the law and a pleas of not guilty entered.

16. The case was taken over by Hon. B. Kimemia PrincipalMagistrate on 24/06/2015 after Hon. P. Nandi wastransferred to another station. The prosecutor wasready to proceed with the case in the morning of13/08/2015. The two accused persons also indicatedthey were ready to proceed with the case which wasgiven time allocation later in the morning.

17. When the court was re-convened, the accused persons said:-

1st accused– I opt to be absent during my hearing. You can proceed.

2nd accused– I also opt to be absent during my hearing.

18. The court noted that the accused persons had walkedout of court and directed that the case proceeds. Theevidence of the three witnesses was taken andprosecution closed its case. The court found theaccused persons had a case to answer and fixeddefence case on 9/09/2015.

19. During the defence hearing, the two accused werepresent in court. The accused persons refused to givetheir defences and made the following remarks:-

Accused 1

I will not be calling any defence as the matter proceeded and I did not hear the evidence. You found this file here and the case was here before you came. You came with your laws or you do not understand the law. I have already made an application to the High Court, you can proceed with the case (accused has spoken very disrespectfully to the court bordering on insults to the court).

Accused 2

I will also not call a defence, you came and found this case here and proceeded with it. I do not want to be heard, let the court do what it wants with the case. I have applied to the High court because you seem to be using a different law which we do not know and you are mistaken that you can proceed with the case when we are not there.

20. After making the uncalled for remarks, the accusedpersons walked out of the court. The learned magistrate gave the accused persons another date for defencehearing. The accused persons attended court on8/10/2015 and said they were not ready to proceed.They said they wanted another date and the witnessstatements. The application was allowed and the two were instructed “to collect the witness statements aspreviously ordered”.

21. The appellants did not pay the photocopying chargesand did not collect the statements. The court orderedthat the statements be supplied at the court's cost on5/11/2015. The order was made in their presence inopen court.

22. The case came up for defence hearing again on9/11/2015. This time the appellants said they were notgiving any defence because the court heard the case intheir absence. They told the court to proceed an“determine the case as it wants”.

23. The court made the following orders:-

The two accused having opted not to call any defence, the defence case is hereby ordered as closed as against the two accused.

24. In deciding whether the appellants was given a fair trial, the court will apply the relevant law and evaluate the facts and evidence on record.

Article 50 (2)(f) of the Constitution provides:-

Every accused person shall have the right to a fair trial which includes the right:-

(f) to be present when being tried unless the conduct of the accused person makes it impossible for the trial to proceed.

25. These provisions are explained in the Criminal Procedure Code Section 194 which provides:-

Except as otherwise expressly provided, all evidence taken in a trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).

26. It is noted that the appellants were not present during the time the evidence of the prosecution was taken. The court requires to interrogate the reasons for theirabsence, whether the court denied them their rightto be present or whether the absence was voluntary. Ifthe absence was not voluntary, what was thecircumstances leading to that state of affairs.

27. The appellants walked out of the court twice during the trial after making disrespectful remarks to the effect that the court could proceed in their absence and make any decision it wished to make. Each of them said:-

“I opt to be absent during the hearing. You can proceed”

28. The Court of appeal in the case of AGGREY MBAE INJAGA VS REPUBLIC [2014] eKLRdealt with asimilar case. The accused in that case had said. “I won’t participate in these proceedings” (before retiring hastilyto the cells).

29. The court observed and held:-

“The trial court then noted that as the accused had left the court of his own accord, it was impracticable to proceed with the hearing in his presence, and therefore ordered that the trial do proceed in his absence. We concur with Mrs. Murungi that the appellant had conducted himself in a manner to render the continuance of the proceedings impracticable by requesting for numerous adjournments whenever the trial court sought to proceed with the matter, and by walking out of court and refusing to participate in the proceedings.

We therefore find no merit in the assertion that the appellant was denied a fair hearing.

30. The appellants in this case had a long history ofdefiance which started at Runyenjes court when theyrefused plea to be taken by the Senior ResidentMagistrate Runyenjes without giving any reason. It was the first time the pair attended the court which means that theyhad not met the magistrate in court before and had no reason to refuse the taking of plea in that court.

31. The second incident was the refusal to have fingerprints taken by the police followed by refusal for plea to be taken by the magistrates in Embu Court when the case was transferred there.

32. Finally, the appellants refused on their own accord toparticipate in the trial. After the first walking outincident following which the evidence of the prosecution witnesses was taken, the court accommodated theappellants by adjourning the matter three times so thatthey could participate in the defence. Each of themsaid: “I will not be calling any defence …..”

33. The absence of the appellants from the trial wasvoluntary expressed very candidly and disrespectfully to the court. The trial magistrate did the best she could to accommodate the appellants whose conduct bordered on contempt on the face of the court. It was a scheme designed to make it impossible for the trial to take place. The pair talked in unison which was evidence of preparation to defy and intimidate the court not to conduct the trial.

34. The magistrate explained in details the unbecomingconduct of the appellants in court in her judgment which was carried from one court to another. This exonerates the magistrate from any bias against the appellants. It was also explained that the appellants finally decided to be absent from the proceedings. Article 50(2)(f) empowers the court to proceed in the absence of the accused person where his conduct makes it impossible for the trial to proceed. This was one such case but before the magistrate made that pronouncement, the appellants opted to be absent.

35. As for the witness statements, the state has a duty to supply to the accused person as stipulated by the law.

36. The court ordered on three occasions that the appellants be supplied with witness statements and directed that they pay photocopy charges. The reason for this cost was not explained by the court. However, I take judicial notice that the prosecution sometimes have shortage of funds and sometimes no office equipment/machine to do photocopying. During such times the prosecutormay make such a request before the court.

37. If the accused persons cannot afford the photocopyingcharges, the court is informed and further directionsmay be given to ensure the statements are supplied. Inthis case, I note that the appellants did not give anyindication to the court whether it was within their means to pay photocopying charges. However, the court went further and directed that the statements be supplied atthe cost of the court. Most courts have photocopyingmachines and I believe this is the facility that themagistrate had in mind.

38. The issue of statements was not brought to theattention of the court again and the matter ended there. It would be assumed unless the contrary is proved thatthe statements were supplied to the appellants. Isuppose that if the statements were not supplied, theissue would have been raised in court and recorded inthe proceedings. I reach a conclusion that this groundof appeal has not been proved.

39. I therefore come to the conclusion that the appellantswere not denied their constitutional rights and that theywere given a fair trial by the honourable magistrate.The other issue for determination is whether theprosecution proved the case against the appellantsbeyond any reasonable doubt.

40. The evidence of the prosecution witnesses was that thethree police officers PW1, PW2, PW3 were on patrolduties within Runyenjes township on 25/3/2015. Ataround 3. 00 a.m. they were at Runyenjes Bus stageoppositeKirima Bar. Aided by light of motor vehicles,they saw the appellants hiding at a wooden structureused for shoe shine business. They ordered them tostop and arrested them. They found a metal crow barand an axe at the place of arrest.

41. Upon conducting a personal search on the appellants,the officers recovered some implements from the 1stappellant, a knife and a luminous handle inside thesock of the left leg. From the 2nd appellant, a pair ofpliers was recovered tucked in the waist.

42. The appellants were arrested and escorted to Runyenjes police station where they were charged. Oninterrogation at the scene, the appellants said they were watchmen of Kisima bar implying that they were onduty. Theowner of Kisima Bar was summoned and hesaid that he did not know the appellants and that theywere not their employees.

43. At the close of the prosecution’s case, the court explained the rights of defence in accordance with Section 211 of the Criminal Procedure Code to the appellants who said they did not wish to offer any defence.

44. The appellants were arrested in possession of crude weapons namely an axe and a crowbar. A pair of pliers being an implement normally used for house-breaking, a luminous handle and a knife were found in their possession. The two were together and went to hide upon seeing the officers approaching.

45. The appellants were armed with crude weapons whichconfirms that they were prepared or were preparing tocommit a felony. This may have been robbery or anyother felony the implements in their possessions andhidden in their clothes are mostly used by thugs forhouse or shop breaking. They were arrested at a veryodd hour of 3. 00 a.m. when most law abiding citizenswere resting in their houses to prepare to go to work inthe morning. They did not explain why they went tohide after seeing the police and still went further totheir identities.

46. In the absence of any explanation by the appellants as to what they were dong at the commercial area of the town at 3. 00 a.m. armed with dangerous weapons and with house breaking implements, the inference may be rightly drawn that they were preparing to commit a felony of robbery or that of shop-breaking.

47. I am in agreement with the findings of the learned magistrate that the evidence of the prosecution was overwhelming against the appellants. The ingredients of the offence were established and the evidence wasevaluated as required by the law.

48. The conviction was based on cogent evidence and I findit was safe.

49. Section 308(1) of the Penal Code provides for asentence of not less than seven (7) and not more thanfifteen (15) years imprisonment. The sentence imposedby the learned magistrate was therefore within the law.

50. I find that the conviction was safe and sentence lawful and are hereby upheld.

51. The appeal is accordingly dismissed.

52. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 27TH DAY OF FEBRUARY, 2017.

F.MUCHEMI

JUDGE

In the presence of:-

Both appellants

Ms. Nandwa for Respondent