[2016] KEHC 874 (KLR)
The trial magistrate failed to comply with section 200(3) of the Criminal Procedure Code after taking over the case from a previous magistrate. Although the magistrate initially ordered the matter to start afresh, he later closed the prosecution case and relied on the evidence already on record without informing the...
Source-derived case information.
- Citation
- [2016] KEHC 874 (KLR)
- Parties
- Appellant: Joshua Kiremi; Appellant: Moses Kinyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 & 94 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; sentence set aside; retrial ordered
- Judges
- KW Kiarie
- Legal Topics
- Robbery With Violence, Section 296 2 Penal Code, Section 200 3 Criminal Procedure Code, Mistrial, Retrial, Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Kiremi
Appellant
Moses Kinyua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate complied with section 200(3) of the Criminal Procedure Code.
- 2 Whether the conviction was based on sufficient evidence.
Ratio Decidendi
The trial magistrate failed to comply with section 200(3) of the Criminal Procedure Code after taking over the case from a previous magistrate. Although the magistrate initially ordered the matter to start afresh, he later closed the prosecution case and relied on the evidence already on record without informing the accused of their right to have witnesses resummoned and reheard. This procedural irregularity was prejudicial to the appellants and resulted in a mistrial. Consequently, the conviction and sentence could not stand and were quashed, with an order for retrial before a different magistrate.
Court Disposition
conviction quashed; sentence set aside; retrial ordered
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 93 OF 2014
[CONSOLIDATED WITH CR. APP. NO. 94 OF 2014]
1. JOSHUA KIREMI
2. MOSES KINYUA..........APPELLANTS
VERSUS
REPUBLIC ……………. RESPONDENT
(From the original conviction and sentence in criminal case No.04 of 2010 of the Chief Magistrate’s Court at Maua by W.F Andayi – Principal Magistrate)
JUDGMENT
The appellants,JOSHUA KIREMIandMOSES KINYUA, were convicted for the Offence of robbery with violence contrary to section 296(2) of the Penal Code.
The particulars of the offence were that on the 5th day of December 2009 at Maua location in Igembe District of Eastern Province, jointly with others not before the court while armed with pangas, robbed BERNARD KIMATHI of cash Kshs. 3000 and at or immediately before or immediately after the time of the said robbery used actual violence to the said BERNARD KIMATHI.
The appellants were tried and convicted of the offence. They were sentenced to death. They now appeal against both conviction and sentence.
The appellants was represented by M/s J.K Ntarangwi, learned counsel. She raised seven grounds in the supplementary petition of appeal which can be summarized as follows:
1. That the learned trial magistrate erred in law and in fact by failing to comply with section 200(3) of the Criminal Procedure Code.
2. That the learned trial magistrate convicted without sufficient evidence.
The state conceded the appeal and was represented by Mr. Odhiambo, the learned counsel.
The facts of the prosecution case briefly were as follows:
The complainant was robbed by the appellants and some others.
The appellants denied any involvement in the offence.
This is a first appellate court as expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated Case of OKENO Vs. REPUBLIC 1972 EA 32.
This is a case where the learned trial magistrate failed to comply with section 200 (3) of the Criminal Procedure Code. The section provides as follows:
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 resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
When Hon. Andayi took over the conduct of the trial herein after Hon. Makungu had disqualified herself, he made an order that the matter was to start afresh. This was on 23rd September 2010. However, on 2nd March 2011 the same magistrate (Hon. Andayi) suo moto made an order that the prosecution case be closed and indicated that he was going to use the evidence on record. This was prejudicial to the appellants and resulted in a mistrial.
The conviction is quashed and the sentence set aside. I am making an order for retrial at Maua law courts by any other magistrate other than Hon. Makungu and Hon. Andayi.
The appellants to be escorted to Maua law Courts on 5thJanuary 2017 for further orders by the Chief Magistrate.
DATED at Meru 20th day of December 2016
KIARIE WAWERU KIARIE
JUDGE