[1983] KECA 133 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL KISUMU

(Coram: Kneller, J A, Chesoni and Nyarangi, Ag JJ.A)

CRIMINAL APPEAL NO 121 OF 1983

BETWEEN

JAMES NYANAMBA……………………………………………....................APPELLANT

AND

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

(Appeal from a judgment of the High Court of Kenya

at Kisumu (Mr Justice Derek Schoffield)

dated 26th

March, 1978)

in

Criminal Appeal No 760 & 761 of 1982

JUDGMENT OF THE COURT

The appellant, JamesNyanamba, and another man called Yuvenalis Miruka were jointly charged with two counts of robbery contrary to section 296(1) of the Panel Code and James was charged separately in count three with indecent assault on a female contrary to section 144(1) (ibid) and Yuvenalis was charged alone with a similar offence in count four.

There were a number of defects in the evidence in the trial. There was no evidence, for instance, of robbery as defined in section 296(1) of the Penal Code on count two. It was a case at most of theft, because no force or threat of force was used. On counts three and four, there was no medical evidence, nor any observation of what happened to each complainant by the other to afford corroboration. These latter offences, being sexual offences, require a careful direction by the magistrate that it is unsafe to act on the evidence of a complainant in such a case without corroboration but that if the magistrate is satisfied that the evidence is reliable, then after paying attention to the warning, he may nevertheless convict. There was no such warning in this case and the absence of such a warning may render the conviction unsound. R. v. CheropArap Kinfi (1936, 3 E.A.C.A. 124).

It may be that the magistrate failed to appreciate these substantial defects in the evidence because of his incorrect approach to it, the form of his judgment and the defence. The trial magistrate after outlining the evidence of the prosecution witness stated that he believed their evidence but gave no reason for believing it apart from saying that they had no reason for lying. The judgement failed to comply with the provisions of section 169(1) of the Criminal Procedure Code, which requires every judgment to contain the point or points for determination, the decision thereon and the reasons for the decision. It was after the trial magistrate had considered and decided on the prosecution evidence that he rejected the defences as false, again without giving any reasons. He should have considered the evidence as a whole; see Okale Okethi and Others v. Republic (1965)E.A. 555.

At the end of his judgment the trial magistrate said:

"I am satisfied beyond doubt the charge on all 4 counts was proved

against the two accused. I therefore find the two accused guilty of the

offences charged and I convict them accordingly."

Again, the magistrate transgressed subsection (2) of section 169 of the Criminal Procedure Code which requires that in the case of a conviction, the judgment must specify the offence of which, and the section of the Penal Code or other law under which the accused person is convicted. Since in his opening statement of the judgment, the magistrate did not state which accused was charged alone in whichcourntof the counts 3 and 4 it cannot be said that the omission to comply with section 169 (2) (ibid) did not occasion the appellant injustice. In the circumstances of this case that omission is not cured by section 382 of the Criminal Procedure Code.

In his defence the appellant made an unsworn statements in which he said:

"I have nothing to comment on the allegations

against me as I was at Nubian Village."

The appellant therefore put forward a defence of alibi.

This defence does not appear to have been considered by the magistrate at all. These matters were not dealt with by the learned Judge who heard the appellant's first appeal. We cannot say what the lower courts findings would have been on the defence of alibi and the appellant's defence of alibi has not occasioned a failure of justice.

For the foregoing reasons we allow the appeal, quash the convictions, set aside the sentences and order that the appellant be set free forthwith unless he is otherwise lawfully detained.

Delivered at Kisumu this 8th day of December, 1983.

A. A. KNELLER

Judge of Appeal

Z.R.CHESONI

Ag. Judge of Appeal

H.G. PLATT

Ag. Judge of Appeal