[2019] KEHC 11321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 51 OF 2018

JACKSON KIHARA GACHUCHA..................APPELLANT

VERSUS

REPUBLIC.......................................................RESPONDENT

(Appeal from the original conviction and sentence in the Chief Magistrate’s Court at Milimani in Cr. Case No. 862 of 2015 delivered by Hon. H. Onkwani (SPM) on 6th March 2015).

JUDGMENT

1. The Appellant, Jackson Kihara Gachucha was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars of the same were that on the 27th day of April, 2015 at Kobil Petrol Station along Langata Road in Nairobi within Nairobi County, jointly with another not before court, being armed with dangerous weapon namely wire, robbed David Gitari Kinyunjuri of a motor vehicle registration number KBS 338M Toyota Axio Saloon valued at Kshs. 650,000/= and at the time of such robbery used actual violence to the said David Gitari Kinyunjuri.

2. The Appellant pleaded not guilty to the charge. Upon conclusion of the trial, he was convicted of the same and sentenced to suffer death. He was dissatisfied with both the conviction and sentence against which he preferred the instant appeal.

Grounds of Appeal

3. The Appellant raised eight (8) grounds of Appeal in his Petition of Appeal filed on 15th March 2018. He also raised further grounds of appeal in his written submissions filed on 11th March 2019. He was aggrieved that Section 200 (3)of the Criminal Procedure Code was not complied with;that the charge sheet was defective for being at variance with the evidence adduced in court; that the identification evidence was insufficient; that the evidence tendered was marred with inconsistencies and contradictions; that the testimonies tendered regarding the mode of his arrest was riddled with doubts; that the prosecution failed to call essential witnesses; that his defence was not considered and that the prosecution failed to prove that he was found in possession of a stolen motor vehicle.

Submissions

4. The Appellant appeared in person and tendered both written and oral submissions. His written submissions were filed on 12th March, 2019. The Respondent was represented by learned State Counsel Ms. Sigei who only tendered oral submissions.

5. The Appellant submitted that when Hon. H. Onkwani took over the proceedings from Hon. T. B. Nyangena, the learned magistrate failed to inform him of his right under Section 200 (3) of the Criminal Procedure Code to recall any or all the witnesses who had already testified. He stated that the failure to comply with the mandatory requirement automatically ripped the learned magistrate of the jurisdiction to continue with the conduct of the proceedings. He submitted that the same vitiated the entire trial and rendered it a nullity.

6. The Appellant also contended that the charge sheet was defective for being at variance with the evidence adduced. He submitted that the charge sheet referred to the victim as David Gitari Kinyunjuri yet the purported victim gave his name in court as David Gitari Kinyanjui. He complained that the prosecution did not make any effort to amend the charge sheet to reflect the correct name despite the glaring difference. Further, the Appellant took issue with the identification evidence tendered in court. He submitted that the first report did not contain a description of the assailant and/or his manner of dressing to enable the police conduct a proper identification parade. In his view therefore, the evidence regarding the identification parade was of little probative value and thus insufficient to base a conviction.

7. He further submitted that the evidence adduced by the prosecution was contradictory and inconsistent with the first report made to the police. He stated that PW3’s testimony that he was approached by one person contradicted his first report that he was approached by two men. Secondly, he argued PW3’s evidence that the Appellant was wearing a brown jacket on the material night did not appear on his first report. Thirdly, that PW3’s first report indicated that his assailants were armed with pistols and a panga but the only weapon mentioned in his evidence and the charge sheet was a wire which was not indicated in the first report. Fourthly, he cited the discrepancy between the model and colour of the motor vehicle indicated in the first report and the evidence presented in court.

8. It was also his contention that the prosecution failed to call essential witnesses to prove its case. In this regard, he cited several persons who were mentioned in the evidence tendered in court. He was aggrieved that the trial magistrate failed to draw an adverse inference from the failure by the prosecution to call those persons as witnesses. In addition, the Appellant submitted that the manner in which he was arrested was not clearly explained thus raising doubt as to his participation in the offence. He also faulted the trial court for failing to consider his formidable defence and argued that the prosecution failed to prove that he was found in possession of a stolen motor vehicle.

9. The learned State Counsel, Ms. Sigei conceded to the appeal on the basis of the trial court’s non-compliance with Section 200 (3) of the Criminal Procedure Code. She submitted that the Appellant was not accorded the right to choose whether or not to recall the witnesses who had testified when Hon. Onkwani took over the conduct of the trial. She submitted that the same amounted to a mistrial and therefore urged that a retrial be ordered since the evidence established that the Appellant committed the offence in question. She held the view that the doctrine of recent possession was established as the Appellant was found in possession of the stolen motor vehicle. He was identified in an identification parade as having taken part in a robbery which resulted in the theft of the said motor vehicle. Further, that PW1 adduced documents to prove ownership of the motor vehicle which was stolen from his employee, PW3.

Determination

10. This court will first address itself on whether Section 200 (3) of the Criminal Procedure Code was duly complied with when a different magistrate took over the conduct of the proceedings from the previous magistrate. The provision reads as follows:

“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 resummoned and reheard and the succeeding magistrate shall inform the accused person of that right”.

11. A reading of the above provision clearly places a mandatory obligation upon a succeeding trial magistrate the duty to inform an accused person that he has a right to choose to recall the witnesses who had already testified for further cross examination. The magistrate should also inform the accused that he has a right to elect that the matter be heard de novo or proceeds from where it had reached. The magistrate must record that the provision was complied with, which can be discerned not only by this indicator but the answer that the accused gives to the court. The court cannot in any way purport to give the answer on behalf of the accused. The failure to carry out this obligation renders the trial a nullity.The spirit and letter of this provision is basically to protect an accused person’s right to a fair trial, which right under Article 25 of the Constitution is non-derogable.

12. A perusal of the trial court’s proceedings reveals that the trial commenced before Hon. T. B. Nyangena, Principal Magistrate who heard one witness. Thereafter, the case was reallocated to Hon. H. Onkwani, Senior Resident Magistrate who issued directions under Section 200 (3) of the Criminal Procedure Code on 24th May 2017 before proceeding to take the evidence of PW2. The proceedings on the said date were recorded as follows;

“Prosecutor - I have two witnesses in court ready to proceed. There is a police officer from Thika with OB and will be in court at 10. 30am.

Accused - Ready to proceed.

Court - Directions under Section 200 (3) of Criminal Procedure Code taken and accused elects that matter to proceed from where it had reached.”(Emphasis by court).

13. However, the record does not indicate whether the learned trial magistrate actually read and explained to the Appellant his rights under the said provision. There is also no record that the Appellant’s response was to have the matter proceed from where it had reached. The directions as recorded fell short of the statutory requirement under the law. The learned trial magistrate purported to give the answer on behalf of the accused person as opposed to executing her obligation of informing the accused what his rights were under Section 200(3). It was not therefore clear how the Appellant elected the matter should proceed after Hon. Onkwani took over the conduct of the trial. Ultimately, there was non-compliance with the provision which, as conceded by the Respondent vitiated the trial. It rendered the trial a nullity.

14. In so determining I am guided by the Court of Appeal in the case of John Bell Kinengeni vs. Republic [2015] eKLR, where the Court stated as follows regarding non-compliance with this requirement of the law:

“…..the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and that failure to comply with that requirement would in an appropriate case render the trial a nullity as section 200(3) requires in a mandatory tone that the succeeding magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate. In Cyrus Muriithi Kamau and another versus Republic Nyeri Criminal Appeal No. 87 & 88 of 2006, the Court added that the use of the words “shall inform the accused person of that right” in section 200(3) (supra) was clearly meant to protect the rights of an accused person and the duty to see that the right is protected is placed on the trial magistrate and the burden to inform an accused person of the right to have the previous witnesses resummoned and reheard is placed on the magistrate in mandatory terms. In Bob Ayub Alias Edward Gabriel Mbwana Alias Robert Mandiga (supra) the court ruled that the mere mention in the judgment that section 200(3) was complied with is hollow without any evidence from the record that it was actually complied with in accordance with the law.”

15. Section 200 (3) of the Criminal Procedure Codeenvisages such scenarios and provides that such defects can only be corrected by ordering a retrial. It states thus:

“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”.[emphasis mine].

16. See also Rachael Mbaluka Nthitu vs Republic.TheCourt of Appeal has laid the basis on which a retrial can be ordered. See: Mwangi vs Republic [1983] KLR 522 where it was held that:

“That a retrial should not be considered unless the appellate court is of the opinion that, on a proper consideration of the admissible evidence, or potentially admissible evidence a conviction might result; Braganza vs Republic [1957] E.A 152(CA) 469; Pyarwa Bussam vs Republic[1960] E.A 854

Several factors have therefore to be considered. These include:

When the original trial was illegal or defective a retrial will be ordered.

A retrial will not be ordered if the conviction was set aside because of insufficient evidence.

A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.

A retrial should not be ordered where it is likely to cause an injustice to the accused person.

A retrial should be ordered where the interest of justice so demand.

Each case should be decided on its own merits.”

17. The Appellant was linked to the offence by the circumstantial evidence adduced by PW5. He was found in possession of a motor vehicle belonging to PW1. The said motor vehicle had been stolen from PW3 who had been employed by PW1 in his taxi business and allocated the vehicle. The Appellant was positively identified by PW3 in an identification parade that linked him to the robbery incident in which the motor vehicle was stolen. Further, all the elements of the offence of robbery with violence under Section 296 (2) of the Penal Codewere complied with. I am therefore satisfied that a retrial will be proper.

18. On other factors, I consider that the intention of the robbery was to dispossess the complainant of a hard earned possession which vice must be discouraged. Although the Appellant remained in remand since the trial began in May, 2015, the interests of justice demand that a fair trial be done, as even the complainant awaits justice. Furthermore, the offence of robbery with violence carries a possible death sentence. The period of four years the Appellant was in remand outweighs the need to do justice. I find that no prejudice will be occasioned to the Appellant if a retrial is conducted.

19. In the end, this appeal partially succeeds. I quash the conviction, set aside the death sentence and order that a retrial be conducted. The Appellant shall be escorted to Central Police Station for purposes of preparing him to appear before the Chief Magistrate’s Court in Milimani to take plea not later than 15th May, 2019. The trial court file should be remitted back to the magistrate’s court for this purpose. It is so ordered.

DATED and DELIVERED 7TH DAY OFMAY, 2019.

G.W. NGENYE-MACHARIA

JUDGE

1. Appellant in person.

2. Miss Akunja for the Respondent.