[2017] KEHC 9714 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 314 of 2012

JOSEPH MWANGI NJOROGE..…………………………………...APPELLANT

VERSUS

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

(An appeal from the original conviction and sentence in the Chief Magistrate’s court at Nairobi Cr. Case 308 of 2012 delivered by Hon. D. A. Okundi, SPM on 3rd December 2012).

JUDGMENT

Background

James Mwangi Njoroge, the Appellant herein was charged with trafficking in narcotic drugs contrary to Section 4(a)of theNarcotic DrugsandPsychotropic Substances Act, No. 4 of 1994. The particulars of the offence were that on 29th February, 2012 at around 7. 00 a.m., at Ngara in Nairobi within Nairobi area, trafficked by conveying narcotic drugs namely cannabis to wit 50 stones with a street value of Kshs. 15,000/- in contravention of the Act.

The Appellant was found guilty and sentenced to pay a fine of Kshs. 1,000,000/- in default serve 5 years imprisonment, and in addition serve a life imprisonment. He was dissatisfied with both the conviction and sentence as a result of which he filed the present appeal. His amended grounds of appeal were annexed to his written submissions and were filed on 21st September, 2017. They were that the charge sheet was defective, that the provisions of Article 50(2)(c) and (k) of the Constitution were contravened, that he was not granted an opportunity to present his defence, that the prosecution did not prove its case beyond a reasonable doubt and that Section 213 of the Criminal Procedure Code was not complied with.

Submissions

The Appellant submitted that his constitutional right to a fair trial as envisioned under Article 50(2)(c) and (k)of the Constitution was violated. He submitted that his counsel was granted the opportunity to file written submissions but that the case was closed before either oral or written submissions were introduced. He submitted that the file was forwarded for writing of judgment to the trial magistrate without the submissions which meant that the trial process was yet to be concluded. He faulted the order that parties file written submissions as it violated Sections 213 and 310 of the Criminal Procedure Code. He stated that only oral submissions were legal as was held in the case of Robert Fanali Akhuya v. Republic [2002] eKLR.He thus prayed that an order for a retrial be made as the entire trial was a nullity on account of entertaining an illegality.

With regard to the defective charge sheet he submitted that he was charged with trafficking in narcotic drugs whereas the evidence before the court clearly indicated that he was in possession of the drugs. He submitted that one could not make an inference that he was trafficking simply by walking along the road with drugs. He relied on the case of Peter Mwangi Kariuki v. Republic [2015] eKLR to buttress this submission. He was of the view that he should have been charged under Section 3 instead of Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act. He submitted that this defect in the charge sheet was one that caused real prejudice and was therefore not curable under Section 382 of the Criminal Procedure Code.

He also questioned the sentence that was passed by the trial court submitting that the imposition of a fine and life sentence were illegal.

Learned State counsel, Ms. Kimiri opposed the appeal. On compliance with Article 50(2)(c),(k) and (j) of the Constitution, she submitted that the Appellant was represented and at no point in time his counsel informed the court that the defence had not been furnished with witness statements and was therefore not ready to proceed. Further, that the Appellant was accorded an opportunity to challenge the prosecution case by being allowed to tender a defence and cross-examine the prosecution witnesses. On the issue of not being accorded an opportunity to file submissions, M/s Kimiri submitted that after the close of the prosecution case, the prosecution did not submit and therefore the defence could not have availed submissions. After all, the Appellant was given an opportunity to submit after he tendered his defence. The same was to be done in written form. Several mentions were made to confirm the filing of submissions but counsel did not turn up. This prompted the prosecution to make an application that a judgment should be written. Therefore, according to M/s Kimiri, it was untrue that defence was not accorded an opportunity to adduce evidence and file submissions. Furthermore, the failure to file submissions did not of itself constitute a violation of the Appellant’s constitutional rights to a fair trial.

On the strength of the case, M/s Kimiri submitted that the prosecution proved its case beyond a reasonable doubt. In summarizing the evidence of the prosecution, she submitted that both PW1 and 2 who were administration police officers accosted the Appellant while he was walking with the drug in a polythene bag packed in twenty stones. The drug was taken to Central Police Station after which PW4 had it examined and analyzed by PW3, a government chemist so as to ascertain its nature. It was confirmed as cannabis sativa. The Appellant did not dispute his arrest nor strongly put up a defence against the prosecution case. According to M/s Kimiri therefore, the Appellant was convicted based on cogent and consistent evidence. His defence was therefore a mere denial and did not oust the strong prosecution case.

On sentence, counsel submitted that the sentence was harsh and excessive as Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994 did not provide for a mandatory sentence. On this ground, she submitted that given the nature of the offence, the Appellant had served sufficient sentence and did not oppose that he be set free.

Evidence

The prosecution called a total of four witnesses who were brief in their testimonies. PW1, SGT Sameul Nkanai and PW2, Corporal Norman Musyimi were both administration police officers from Ngara AP Post. They were on patrol around Ngara area on 29th February, 2012 at around 7. 00 a.m. They met with the Appellant who was carrying a yellow polythene bag. They became suspicious of what he was carrying in the bag and they decided to search it. They recovered from him 50 stones of cannabis sativa. They arrested him and impounded the drug. Thereafter, on the same date they escorted him to CID Nairobi Area headquarters in the Anti-Narcotic Drugs Unit where they handed him over to PW4, PC Albanus Mutunga. PW4 prepared an exhibit memo form through which he sent the plant material to a government analyst for examination. The analysis was done by PW3, Patrick Ochieng Nyaoke, a government chemist. In his report, the plant material weighed 5. 5 kilograms and was found to be cannabis which is a narcotic drug under the Narcotic Drug and Psychotropic Substances Control Act of 1994. He prepared a report dated 15th March, 2012 and produced it in court as an exhibit. PW4 preferred the charges against the Appellant. The drug was produced in court as an exhibit.

After the close of the prosecution case, the court ruled that the Appellant had a case to answer and was accordingly put on his defence. He gave a sworn statement of defence in which he denied committing the offence. His defence was that on the fateful morning, he was at Ngara waiting to board matatus to Muranga. He heard somebody grab him who turned out to be a police officer. He was hand-cuffed and taken to Ngara Chief’s Office where he was locked up. After about two hours, one of the arresting officers took him to a house behind the chief’s camp where he was shown a luggage and told that it belonged to him. He was thereafter transferred to central police station where he was charged accordingly.

Determination

I have accordingly considered the evidence on record and the respective rival submissions. I have deduced that the issues that arise for determination are whether the Appellant’s right to a fair trial was violated, whether Sections 200 and211 of the Criminal Procedure Codewere violated and whether the case was proved beyond a reasonable doubt.

With respect to infringement of the Appellant’s constitutional right to a fair trial, the Appellant submitted that he was not accorded an opportunity to file written submissions after the defence closed its case. He also faulted the directive by the trial court of ordering that the submissions be written yet no law provided for written submissions. The court was referred to the case of Robert Fanali Akhuya v Republic (2002) e KLRto buttress this submission.

It is now a settled practice under the new constitutional dispensation that filing of written submissions has become the norm. With the provision in the Constitution at Article 159 that courts should not dwell on technicalities but focus on doing substantive justice, written submissions serve the purpose of expedience. Therefore, submissions can now be oral or written. See Ali Ngumbao Baya & 2 others v. Director of Public Prosecution [2015] eKLR,

“Reliance has been placed on the Court of Appeal decision in the case of ROBERT FANALI AKHUYA(supra)… It no longer stand as good law. Article 159 of the Constitution is against technicalities. Submissions can either be oral or written. It all amounts to addressing the court as provided by Sections 213 and 310 of the Criminal Procedure Act. Submissions simply put means an evaluation of the evidence of each party and analysis of the law.”

On the Appellant’s failure to file the submissions, it is clear that the defence case was closed on 20th September, 2012 and that the Appellant’s counsel asked the court to allow the filing of written submissions. The court acquiesced and a mention was set for 5th October, 2012 for this purpose. On 5th October the court granted leave to the defence to file the written submissions. When the matter came up for hearing on 12th October, 2012 the Appellant’s lawyer was not present but a further mention was set for 26th October, 2012 for the submissions. On 26th the Appellant’s counsel was not present again. This prompted the prosecution to apply to proceed and write the judgment as the defence had not filed the submissions. The court then made an order for forwarding the file to Hon. Obaga (as he then was) for the judgment to be written.

Clearly then, the Appellant failed to exercise the leave granted to him to file written submissions. It appears that this was occasioned by the failure of his advocate which led the court to make a decision that the file should be forwarded for the judgment to be written. My view is that at this point the court ought to have given the Appellant an opportunity to file the submissions himself if he so wished since his counsel had failed him. This notwithstanding, I find that his right to a fair trial was not violated, firstly because the right to file written submissions in a criminal case is only spelt out under Section 311 of the Criminal Procedure Code which allows the prosecution to sum up the case where the Appellant choses to exercise his right to remain silent with the same right being conversely applied to the defence. In present case, the Appellant gave an unsworn statement of defence in which case the right to submit did not accord to him. Secondly, submissions by themselves are neither law nor evidence. They only are intended to sum up a case for a party. They do not constitute a new avenue to adduce evidence in a case but are rather meant as a guide to the trial court when evaluating the evidence before it. They do not form an integral part of the hearing and therefore they cannot be said, as the Appellant contends, to be part and parcel of the trial.

The next issue is on whether Section 211(1) of the Criminal Procedure code was complied with. The same reads;

“At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).”

In this case a ruling was made on 10th September, 2012 that the prosecution “has disclosed a prima facie case against the accused. He is according put on his defence.” The Appellant’s advocate then stated that the Appellant would give ‘a unsworn’ testimony (but actually gave an unsworn defence) and call no witnesses. It is clear from the record of appeal that the court did not inform the Appellant of the options available to him as set out in the provision. This duty is bestowed on the court personally and it cannot be dispensed with simply because the Appellant has an advocate on record. It sufficed for the trial magistrate to merely indicate that Section 211 had been complied with. That would have constituted an indicator that he understood the implications of giving a particular form of defence. This was not done and even if the Appellant was represented, it was important that it was understood that he had understood the import of adducing the unsworn defence he gave. The failure therefore to comply with the provision meant that the entire trial was vitiated. This necessitates this court to order a retrial. Having rendered myself on this issue, I shall not delve into whether Section 200 of the Criminal Procedure Code was complied with.

Of course, several factors must be considered before a retrial is ordered amongst them being whether the retrial is likely to result in a conviction, whether the retrial will aid the prosecution to close gaps in its case, whether any prejudice would be occasioned to the accused and whether interests of justice would be served. I take into account that the Appellant has been in custody for over five years, a fact the Respondent conceded mitigated against a retrial. This is in view of the fact that the sentence imposed against the Appellant was harsh and excessive as Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 does not provide for a mandatory sentence. Taking into account the nature and the quantity of the drug, it is my view that the Appellant has served sufficient sentence.

In the end, I quash the conviction, set aside the sentence and order that the Appellant be forthwith set free unless otherwise lawfully held. It is so ordered.

Dated and delivered at Nairobi this 8th November, 2017.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of;

1. Appellant present in person.

2. Miss Nyauncho for the Respondent.