[2016] KEHC 3567 (KLR)
The court found that the trial record was silent on whether the prosecution witnesses were sworn before testifying, in violation of section 151 of the Criminal Procedure Code. This omission is a grave procedural defect that renders the entire trial a nullity, as it cannot be established that the evidence was...
Source-derived case information.
- Citation
- [2016] KEHC 3567 (KLR)
- Parties
- Appellant: Johnston Keru Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 39 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed and sentence set aside; retrial ordered
- Judges
- KW Kiarie
- Legal Topics
- Unsworn Evidence, Retrial Order, Conviction Nullity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnston Keru Macharia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to record that witnesses were sworn before testifying rendered the trial a nullity.
- 2 Whether the conviction and sentence could stand in light of the procedural defect.
Ratio Decidendi
The court found that the trial record was silent on whether the prosecution witnesses were sworn before testifying, in violation of section 151 of the Criminal Procedure Code. This omission is a grave procedural defect that renders the entire trial a nullity, as it cannot be established that the evidence was lawfully received. The defect is not curable under section 382 of the Criminal Procedure Code, and the conviction and sentence based on such evidence cannot stand. The court quashed the conviction, set aside the sentence, and ordered a retrial before a different magistrate, directing that the time already served by the appellant be considered in the event of a subsequent conviction.
Court Disposition
conviction quashed and sentence set aside; retrial ordered
Orders
- The conviction is quashed and the sentence set aside.
- The matter is remitted to the Chief Magistrate's Court Murang'a for retrial before a magistrate other than Hon. J.J Masiga.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG'A
CRIMINAL APPEAL NO.39 OF 2014
JOHNSTON KERU MACHARIA…………………….APPELLANT
VERSUS
REPUBLIC…………………………………………RESPONDENT
(From the original conviction and sentence Criminal No.522 of 2013 of the Chief Magistrate’s Court at Murang'a by Hon. J.J Masiga – Resident Magistrate)
JUDGMENT
The appellant,JOHNSTON KERU MACHARIA, was convicted of the offence of breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code.
The particulars of the offence were that on diverse dates between 27th July 2013 and 2nd August 2013 at Getwa market, broke and entered the shop of CHARLES CHARAGU WAIGURU and stole from therein property valued at Kshs. 12,000/=.
He was sentenced to serve seven years imprisonment.
He now appeals against both conviction and sentence
The appellant was in person.
He raised four grounds of appeal in his amended petition of appeal.
The state opposed the appeal through M/s. Lydia Wang'ombe, the learned counsel.
Upon my perusal of the typed and the original record of proceedings it occurred that the record is silent as to whether the witnesses were sworn before they testified. Section 151 of the Criminal procedure Code provides as follows:
Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.
This issue was dealt with in the case of RASHID WACHILU KASHEKA Vs. REPUBLIC [2015] eKLR where the court observed as follows:
In Mwangi v. Republic(2006) 2 KLR 94, a case that is almost on all fours with the present appeal and which is binding on this court, the Court of Appeal not being able to determine whether the witnesses had been sworn, declared the trial a nullity and ordered a retrial as follows:
“The usual practice of all the courts in Kenya is, of course, to show in the record that a witness has taken oath before testifying. In the record before us, there is no way in which we can determine. One way or the other, that the witnesses were or were not sworn before they gave evidence.
Most likely, they took the oath before giving evidence. But there is also the possibility that they might not have taken oath and if that is the position, it would mean that the appellant was convicted on evidence which was not sworn. That would be in violation of section 151 of the Criminal Procedure Code and the other provisions we have set out herein. That, in our view, cannot be a matter curable under section 382 of the Criminal Procedure Code. To be convicted and sentenced to death on evidence which is not sworn must of necessity, be prejudicial to an accused person. In the event, we are satisfied that the trial of the appellant was a nullity because we are unable to exclude the probability of his having been convicted on unsworn evidence. It does not matter that the issue is being raised for the first time in this appeal. If a trial was a nullity then it does not matter at what stage that issue is raised.”
The total effect of the legal provisions of section 155 of the Criminal Procedure Act and the authorities referred to above is that in criminal matters as in other contentious matters, evidence of witnesses must be receive on oath. The default in this regard makes the trial of the appellant herein defective as a nullity, and liable to an order for retrial.
I have quoted at length so that the import of not recording whether a witness was sworn or not can be appreciated. I have noted that this is not the first matter the honorable magistrate is making this grave omission.
The trial against the appellant was a nullity. I quash the conviction and set aside the sentence.
I am remitting the matter to the Chief Magistrate's court Murang'a for retrial by a magistrate of competent jurisdiction other than Hon. J.J Masiga.
The appellant to be taken for plea on 26. 8.2016. In the interest of justice the case should be given priority hearing dates and where practicable to be heard on a day to day basis.
In the event that the appellant may be found guilty, the trial magistrate must factor the sentence that he has already served.
Orders accordingly.
DATED at MURANG'A this 19th day of August 2016
KIARIE WAWERU KIARIE
JUDGE