[2010] KEHC 3837 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Appeal 241 of 2008

JOSEPH MUTHECA MWANGI……….......……………..…….APPELLANT

Versus

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

(Appeal from the original conviction and sentence of the Principal Magistrate’s Court at Murang’a

in PMCR.1212 of 2005 by T.W. MURIGI - SRM)

J U D G M E N T

The appellant, Joseph Mucheca Mwangi was charged before the Senior Principal Magistrate’s Court at Murang’a, with one count of robbery contrary to section 296 (1) of the Penal Code, attempted rape contrary to section 4 of the Sexual Offences Act, and an alternative count of indecent act contrary to section 11 (6)of the Sexual Offences Act and finally 3rd count of assault causing actual bodily harm contrary to section 215 of the Penal Code. Particulars of each count were stated in the charge sheet.

Following a full trial, the appellant was found guilty of the offence of simple theft and on the alternative count of indecent act. He was thereafter sentenced to serve 2 and 10 years imprisonment respectively. There was no mention as to whether the sentences were to run concurrently or consecutively, meaning therefore that sentences would run consecutively.

The appellant was aggrieved by the conviction and sentence imposed as aforesaid and consequently lodged the instant appeal. The appellant in his petition of appeal has raised the issue of non-compliance with the mandatory provisions of section 200(3)of the Criminal Procedure Code. This ground is sufficient to dispose off this appeal. This section deals with conviction based on evidence partly recorded by one Magistrate and partly by another. In particular section 200 (1) (3)provides in mandatory terms that:-

“…..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 re-heard and the succeeding magistrate shall inform the accused person of that right….”

From the record, it is apparent that the case was first heard by SBN Atambo, RM, who took the evidence of PW1, PW2, PW3 and PW4. Thereafter the matter was taken over by T.W. Murigi who heard again the evidence of PW1, PW2 and PW3 who had been recalled for further cross-examination by the appellant. The learned magistrate then had the remaining witnesses and wrote the judgment. Nowhere in the record is it indicated that T.W. Murigi informed the appellant of the right to recall the witness.

As already stated, compliance with section 200 (1) (3) by a trial magistrate in the circumstances of a case such as this is mandatory. Failure to so comply is fatal to the prosecution case. What is the way out? Section 200 (1) (4) of the Criminal procedure code provides the answer. It provides interlia:-

“….Where an accused person is convicted upon the evidence that was not wholly recorded by the convicting magistrate, the High Court may if is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

The appellant claims that failure by the trial magistrate to comply with the aforesaid statutory provision prejudiced his case. Indeed in the words of the appellant:-

“The first part of the trial was heard and recorded by the learned SBN ATAMBO RM. However the record isn’t clear the circumstances that led T.W. MURIGI SRM to take over in absence of the knowledge of the accused and in non-compliance of section 200(3) CPC. There was need for the learned T.W. Murigi to have notified the accused on his legal rights as enshrined by the aforesaid section of law….”

Though this issue was raised in the grounds of appeal and indeed in the appellant’s written submissions, Mr. Makura, learned senior state counsel did not see the need to respond to the same. If anything he gave it a wide berth.

As failure to comply with section 200 (3) aforesaid was fatal to the prosecution case, I would in the circumstances allow the appeal, set the conviction and the sentence imposed. The appellant should be set at liberty forthwith unless otherwise lawfully held.

Dated and delivered at Nyeri this 25th day of January, 2010.

M.S.A MAKHANDIA

JUDGE