[2010] KEHC 1309 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Appeal 48 of 2010

HUMPREY KINYANJUI NJENGA::::::::::::::::APPELLANT

~VRS~

REPUBLIC::::::::::::::::RESPONDENT

JUDGMENT

The Appellant was convicted by Bungoma Resident Magistrate for the offence of trafficking in Narcotic Drugs contrary to section 4 (a) of the Narcotic Drugs & Psychotropic Substances Control Act No.4 of 1994 and sentenced to two (2) years imprisonment.It was alleged in the charge dated20/11/2006that the Appellant trafficked 400 stones of bhang jointly with one Tabitha Njoki Wanjuki at Katakwa Trading Centre in Teso District.

Mr. Situma argued the grounds of appeal.He submitted that it was wrong for the arresting officer PW3 to produce the GovernmentChemist report.The prosecution failed to withdraw the chargesagainst the Appellant when he absconded and the court proceeded on with the case as if both accused were present.Judgment was delivered and a sentence of two (2) years imprisonment imposed on Tabitha Njoki Wanjuki.Later the Appellant was arrested and the case against him continued with a second judgment being done.He was also sentencedto two (2) years imprisonment.The Appellant argued that the act by the court of writing two judgments was unproceduralrendering the proceedings defective.Mr. Situma argued that the court failed to resolve the contradictory evidence of the three prosecution witnesses who differed on how many stones of bhangthey found in possession of the Appellant.Further, that the charge was amended in the course of the trial where a major change was made on the charge but the Appellant was not given an opportunity to plead to it afresh.

The state conceded to the appeal due to the unprocedural manner in which it was conducted.However, Mrs. Leting applied for a retrial which plea was opposed by Mr. Situma.

I have carefully perused the proceedings of the trial court.Onthe amendment of the charge, it is clear on page 10 of the appeal record that the charge was read to the accused persons after the oral amendment.Each of the two pleaded not guilty.The counsel who was representing the accused persons told the courtthat despite the amendment, he did not wish to apply to recall PW1 and PW2. The charge was amended in the middle of PW3’s evidence because he differed with PW1 and PW2 on the number of stones of bhang found in possession of the accused persons.The number of stones on amendment changed from 400 to 464 stones.The court acted procedurally in the amendment.

The prosecution’s case closed after PW3’s evidence and submissions were made by the counsel.The court ruledthat the two accused persons had a case to answer.On the date of defence case on19/02/2008the two accused persons failed to turn up in court.The court mentioned the case again on4/3/2008. The 1st accused was present but the Appellant was absent.A warrant of arrest was issued against the Appellant.The Appellant failed to turn up on18/03/2008during the next date of mention.His counsel told the court that he was out of touch with his client.On13/06/2008the court proceeded with the case against the 1st accused without the prosecution withdrawing the charge against the Appellant. The 1st accused gave her defence and the court delivered its judgment on30/06/2008. It was a misdirection on part of the court to proceed with the case of 1st accused without having that of the Appellantwithdrawn.It was the duty of the court to remind the prosecutorto do the needful in the event that he did not know what to do or he may have forgotten to do so.

The Appellant was later arrested and arraigned in court on17/3/2010before the same magistrate.He was put on his defence and a second judgment prepared and delivered on30/4/2010. The act of continuing and finalizing the trial of the Appellant in an already concluded file of another person (who was by then a convict) was unprocedural.The Appellant ought to have been prosecuted afresh in a separate trial.The whole prosecution of the Appellant amounted to a mistrial.I hereby set aside the proceedings, conviction and sentence.This is a case where retrial is the right order to make because it will serve the interests of justice.The prosecution confirmed that the witnesses who are police officers are available.The Appellant was opposed to the retrial for the reason that the exhibit may have been destroyed.This allegation was not confirmed by the state.The Government Chemistreport is available in the appeal record.The Appellant was tried within a period of two (2) years.The trial would have taken a shorter period had he not absconded.

I find it appropriate that a retrial be held in this case.It is hereby ordered thata retrial be held within seven (7) days before a different magistrate.

F. N. MUCHEMI

JUDGE

Judgment delivered and datedat Bungoma this 21st day of October, 2010 in the presence of the Appellant, Mr. Situma his counsel and the State Counsel Mrs Leting.

F. N. MUCHEMI

JUDGE