[2022] KEHC 10098 (KLR)

Ikiara & 4 others v Republic (Criminal Appeal 46,47,48,49 &50 of 2018) [2022] KEHC 10098 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10098 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 46,47,48,49 &50 of 2018

HPG Waweru, J

July 7, 2022

Between

Fredrick Murungi Ikiara

1st Appellant

Geoffrey Kiogora Ikiara

2nd Appellant

Geoffrey Mbaya

3rd Appellant

Samuel Bundi

4th Appellant

Eric Mutuma

5th Appellant

and

Republic

Respondent

(Appeal from original Conviction and Sentence in Nanyuki CM Criminal Case No 360 of 2015 – E Ngigi, SRM and Njeri Thuku, PM)

Judgment

1. These five Appellants, Fredrick Murungi Ikiara, Geoffrey Kiogora Ikiara, Geoffrey Mbaya, Samuel Bundi And Erick Mutumawere each convicted after trial of arson contrary to section 332(a) of the Penal Code. It was alleged that on February 22, 2014 at Kamoko Village within Nyeri County, they jointly, willfully and unlawfully set fire to a semi-permanent house valued at Kshs 2 million, the property of one Justus Mwiti. On August 24, 2018 they were each sentenced to serve two (2) years imprisonment. They appealed against both conviction and sentence. By a ruling dated and delivered on February 14, 2019 by the High Court at Nyeri, the Appellant, were each admitted to bail.

2. One of the grounds of appeal taken up by the Appellants, all of whom were represented in this appeal by learned counsel, is that in their trial the evidence was taken by two different magistrates, yet section 200(3) of the Criminal Procedure Codewas not complied with. Learned counsel for the Respondent conceded the appeals on this ground alone. He also indicated that he would also have conceded the appeal on the other grounds raised in the petition, one of which was that the offence was not proved against any of the Appellants beyond reasonable doubt.

3. Section 200 (3) and (4) provides as follows –“(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard, and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

4. The right of an accused person under section 200(3) to be informed of his right to demand that any witness be re-summoned and heard afresh, if he is so minded, is mandatory. I have examined the record of the trial court. The trial was commenced by Hon. E. Bett, Senior Resident Magistrate, who recorded the testimonies of the first six (6) prosecution witnesses. On May 4, 2017 a new magistrate, Hon. Ngigi, SRM, appears to have taken over hearing of the case. He or she took the testimonies of PW7, PW8 and PW9. He or she also took the defences of the Appellants, all of whom gave sworn evidence and called one witness. He or she also wrote the judgment which was delivered by a third magistrate who also sentenced the Appellants. I have not seen on the record where section 200(3) of the Criminal Procedure Codewas complied with.

5. As already seen the first magistrate took the evidence of six prosecution witnesses. The second magistrate took the evidence of the remaining three prosecution witnesses, and also the defences of the Appellants (all of whom gave sworn evidence and were cross-examined) and their one witness. It was incumbent upon the second (succeeding) magistrate to inform the Appellants of their right to demand recall of any of the six witnesses who had already testified before the first magistrate, if they were so minded. He or she did not do that.

6. More importantly, the first magistrate took the evidence of a large number of witnesses – six of them. The succeeding magistrate equally took the evidence of a large number of witnesses – the three remaining prosecution witnesses and the five accused persons and their one witness. I have read through all the testimonies of the witnesses, and I am satisfied that the Appellants were materially prejudiced by the fact that they were convicted upon evidence not wholly recorded by the convicting magistrate.

7. Learned counsel for the Respondent properly conceded these appeals upon this ground.

8. I will in the event allow all the five appeals and set aside the convictions and the sentences imposed. Because of the passage of time I will not order a retrial. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 5TH DAY OF JULY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 7TH DAY OF JULY 2022