[2013] KEHC 2698 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Milimani Law Courts)

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JOSEPH NJOROGE WAINANA …………………………. APPLICANT

VERSUS

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

RULING

The applicant was convicted of the offences of fraudulent false accounting contrary to Section 330 (a) of the Penal Code in count I and theft by servant contrary to Section 381 of the Penal Code. He was then sentenced to serve 3 years imprisonment respectively and sentences ordered to run concurrently. There is now before me an application to review or vary the said sentences. It is his position that the sentence of 3 years imprisonment is not commensurate with the offence and therefore inordinately harsh and manifestly excessive.

He is also the sole breadwinner of his extended family and his continued stay in prison will affect them adversely. In his affidavit and submission in this court, he states that he is remorseful and benefited from the rehabilitation programmes offered by the prison and asks for another chance. He has served a considerable period in prison from the date of conviction, that is 27th March, 2012 to date. The learned counsel for the Republic opposed the application on the ground that the applicant did not plead guilty to the offence in a trial that took 4 years to complete thereby consuming a lot of court’s time and in any case, the sentence of 3 years imprisonment is not excessive.

The court drew attention of the learned counsel for the Republic to the fact that this case was heard by two magistrates, the first having heard three prosecution witnesses and the succeeding magistrate on taking over, heard the 4th and 5th prosecution witnesses together with the defence of the appellant leading to the final judgment. However, on taking over the case from the previous magistrate the succeeding magistrate did not comply with the provisions of Section 200 (3) of the Criminal Procedure Code which require that the accused be informed of his right to recall any witnesses who may have testified as at that stage, or opt to have them heard afresh.

Since those provisions are coached in mandatory terms, the omission to comply therewith if fatal and therefore any proceedings that took place thereafter were a nullity. There was sufficient evidence upon which the conviction was founded and had the learned succeeding magistrate complied with Section 200 (3) of the Criminal Procedure Code, I would have had no reason whatsoever to interfere with either the conviction or the sentence imposed. However, considering the circumstances of this case I have to do so. I have also laboured with the consideration of whether or not to order a retrial in this case. The guidelines for ordering a retrial are, among others, that this should be ordered to meet the ends of justice and that it should not be prejudicial to the accused person. Further the court has to weigh whether it is the applicant or the court that caused such a situation warranting the retrial.

In this case, it is the court and not the applicant which has necessitated the state of affairs. I have also noted that the applicant has served almost half of the concurrent sentence of 3 years. In the interest of justice therefore, a retrial cannot be ordered. I am inclined therefore, to allow the application by setting aside the proceedings taken by the succeeding magistrate, the conviction and sentence imposed thereafter.

Having done so, I find that the application succeeds and the applicant shall be set free forthwith unless otherwise lawfully held.

Orders accordingly.

Dated and delivered at Nairobi this 3rd Day of June, 2013.

A.MBOGHOLI MSAGHA

JUDGE

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