[2008] KECA 321 (KLR)

IN THE COURT OF APPEAL OF KENYA

AT NYERI

Criminal Appeal 115 of 2007

JAMES GITHUI WATHIAKA

CHARLES GITHINJI MUTURI ……..……..……….. APPELLANTS

AND

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

(Appeal from a Conviction and Sentence of the High Court of Kenya at Nyeri (Okwengu, J.) dated 20th July, 2007

in

H.C.CR.C. NO. 6 OF 2006)

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JUDGMENT OF THE COURT

James Githui Wathiaka, the 1st appellant and Charles Githinji Muturi, the 2nd appellant were among a group of eight persons who appeared before the High Court at Nyeri (Okwengu, J.) on 28th February, 2006 charged on two counts of murder contrary to section 203 as read with section 204 of the Penal Code. On the first count against the eight, it was alleged that on the night of 19th /20th October, 2005 at Kimenyu Village in Nyeri District within Central Province, they jointly with others not before the court murdered Mary Ngima Njiri(1st deceased) while in the second count it was alleged that during the same night and at the same place under the same circumstances, they murdered Joseph Kagori Wigwa(2nd deceased).

In the trial before the learned Judge sitting with three assessors, the 1st appellant was the 1st accused person while the 2nd appellantwas the 8th accused person. At the end of the prosecution’s case, the trial Judge acquitted the 2nd, 3rd and 4th accused persons on the ground that the prosecution had not established a prima facie case against any of them to warrant their being put on their defence. The other five, among them the two appellants, who were put on their defence chose to give unsworn statements. At the end of the trial, the learned Judge summed up the case for the three assessors, each of whom then individually gave his or her verdict to the Judge. The 1st assessor Benjamin Kinyitiwas of the view that the 1st appellant, the 5th accused person and the 2nd appellant were each guilty of the two charges of murder. The 2nd assessor Rosemary Maina was of the view that the 1st appellant the 5th accused, the 6th accused, the 7th accused and the 2nd appellant were all guilty on the two charges. The third assessor Francis K. Maina was of the view that the 1st appellant, the 5th accused, the 6th accused and the 7th accused and the 2nd appellant were all guilty on the two charges. By her judgment dated and delivered on 20th July, 2007, the learned Judge found only the 1st and 2nd appellants guilty on the two charges, convicted them and sentenced each of them to suffer death in the manner authorized by law. The learned Judge acquitted the other accused persons.

The 1st and 2nd appellants now come to this Court by way of a first appeal and that being so, we are, by law, obliged to re-assess and re-evaluate the evidence ourselves and come to our own independent decision on the various issues raised before us, of course not ignoring the findings and conclusions made by the learned trial Judge who was able to physically see and hear the witnesses who testified before her – See OKENO VS. REPUBLIC, [1972] EA 32.

Perhaps before we come to a consideration of the evidence we should first deal with certain matters of law raised on behalf of the appellants by their respective counsel Mr. Muthoni, (for 1st appellant) and Mr. Ng’ang’a, (for 2nd appellant). Those points are to be found in the supplementary memorandum of appeal (for 1st appellant) and “additional grounds of appeal and written submissions” by the 2nd appellant. In respect of the 1st appellant the complaints are to be found in Grounds 1 and 10 which are as follows:-

Ground 1: “THATthe learned trial judge erred in law and fact in failing to find that the appellant’s prosecution was unconstitutional because his fundamental right to a fair trial was grossly violated for being held in police custody beyond the 14 calendar-day period, being the constitutional time frame which he should have been arraigned in court, this being a capital offence, having been arrested on 20th October, 2005 and brought to court on 14th February, 2006 before the Deputy Registrar, working out to a total of 103 days out of time without any explanation whatsoever and the record bears him out on this.”

Ground 10:“THATthe learned trial judge erred in law and infact in her failure to adhere to the mandatory provisions of sections 77(2)(b)(e)(f) of the Constitution of the Republic of Kenya requiring to note the language used when NYERI HC CR C NOS. 6, 14 & 15 of 2006 were consolidated, then explained to the Appellant and pleas retaken on 27th July, 2006 nor was there any indication/note that the appellant had the assistance of an interpreter of a language of his choice and if he understood what was being read out to him.”

In the 2nd appellant’s “ADDITIONAL GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS”, the 2nd appellant complains in ground two thereof:-

“THAT the learned trial Judge erred in law when he affirmed my conviction without him (sic) considering that I overstayed in police custody for more than 4 months after my arrest which was against the law and prejudicial under section 72(2) of the Constitution Act.”

Let us first dispose of the issue of language raised in ground ten by the 1st appellant. The 1st appellant appeared before a Deputy Registrar on 15th June, 2006 when the Deputy Registrar ordered that he be remanded in custody to 29th June, 2006 when he would be produced before a Judge to make his plea. On 29th June, 2006, the 1st appellant appeared before Khamoni, J. and the learned Judge’s record for that day shows as follows:-

“Justice J.M. Khamoni – Judge

State Counsel – Ms Ngalyuka for republic.

Mr. Kiminda for accused.

Interpreter – Martin Mwangi

Language – English/Kikuyu

Accd is arraigned and plead:-

1st count – Not guilty.

2nd count – Not guilty.

For hearing on 27th day of July, 2006.

Accused remanded in custody.

Witness statement be supplied to defending counsel.”

It is clear from this record that the language chosen by the appellants was either English or Kikuyu. It is agreed that the two appellants are Kikuyu and there is nothing to show that the language or languages they had chosen to speak had changed by the time other appellants were added to the charge before Okwengu, J. on 28th February, 2006. When the 1st appellant’s turn came to testify, he addressed the Judge in Swahili; the 2nd appellant gave his unsworn statement in Kikuyu. The complaint that the language used in the proceedings was not shown is wholly unjustified and we reject it off-hand.

We can now deal with the issue of the appellants having been held in police custody for more than fourteen days prescribed by section 72(3) of the Constitution. That section provides:-

“Any person who is arrested or detained –

(a)for the purpose of bringing him before a court in execution of the order of a court; or

(b)upon reasonable suspicion of his having committed or being about to commit, a criminal offence,

and who is not released, shall be brought before a court AS SOON AS IS REASONABLY PRACTICABLE, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court AS SOON AS IS REASONABLY PRACTICABLE shall rest upon any person alleging that the provisions of this subsection have been complied with.”

The section clearly says that a person arrested or detained is to be brought before a court as soon as is reasonably practicable but the phrase “as soon as is reasonably practicable” is circumscribed by the requirement that incase of a non-capital offence it has to be within twenty-four hours and in case of a capital offence it has to be within fourteen days. So that if the twenty-four hours or the fourteen days is exceeded the burden of proving that the arrested or detained person was brought to court “as soon as was reasonably practicable”is on the person making the claim. Otherwise the reasonable time for a non capital offence is twenty-four hoursand for a capital offence is fourteen days. If the period of twenty four hours or the fourteen days is exceeded and it is still claimed the time taken to bring the arrested or detained person was nevertheless the reasonable and practicable one, then the person making that claim must prove it. That is the basis of the decisions such as ALBANUS MWASIA MUTUA VS. REPUBLIC, Criminal Appeal No. 120 of 2004 (unreported), DOMINIC MUTIE MWALIMU VS. REPUBLIC, Criminal Appeal No. 217 of 2005 (unreported), PAUL MWANGI V. REPUBLIC, Criminal Appeal No. 169 of 2006 (unreported) and many others along that line. The appellants in the appeal now before us are asking the Court to acquit them on the charge of murder because in respect to the 1st appellant he was unlawfully detained for some 103 days before being brought to court while the 2nd appellant says he was unlawfully detained for some four months. Should we grant the request of the two appellants on that ground?

Of course, the origin of all these authorities is the MUTUAdecision, supra. There MUTUAwas charged with a capital offence, namely robbery with violence contrary to section 296(2) Penal Code. He first appeared before a magistrate who tried and convicted him. He was sentenced to death. He had no advocate before the magistrate. He appealed to the High Court; once again he had no advocate there. His appeal was dismissed. In his last appeal to this Court, he was represented by Mr. Ondieki who was instructed by the Court to represent him. It was the advocate who raised the issue that MUTUA had been detained for eight months before being brought to court.

The same situation applied in the case of PAUL MWANGI MURUNGA, supra, and we suspect the position was the same in DOMINIC MUTIE MWALIMU, supra. In the MWANGI MURUNGA case, the Court compared the position of poor and vulnerable Kenyans who are invariably unrepresented by counsel and well-heeled Kenyans who can afford advocates. The Court stated as follows:-

“…………………. No explanation was offered either to the Magistrate before whom the appellant appeared as to what the cause of the delay was or to this Court when the issue was raised before us. Mr. Njogu contented himself by simply saying that as the matter was not raised before, it was too late to raise it now and it would be impossible for them to find out why the delay had been there. In other words, Mr. Njogu was in effect submitting that there ought to be a complaint by an accused person when he or she is first taken to court before the prosecution can be called upon to discharge the burden placed upon them bysection 72(3)of the Constitution. Of course well-heeled Kenyans who can afford legal representation invariably raise such complaints and even go as far as asking the magistrate to stay the proceedings to enable them go before the High Court to challange the constitutionality of their having been detained.ANNE NJOGU & 5 OTHERS VS. REPUBLIC, HC MISC. Application No. 551 of 2007 (unreported) is a classic example of such a situation. There, twenty advocates, led by Mr. Nowrojee, asked Mutungi, J. on behalf of the six applicants and even before plea was taken by the magistrate, to rule that as applicant’s constitutional rights had been violated their prosecution ought not to proceed. Mutungi, J. duly obliged. So the question is: is the enjoyment of these basic constitutional rights to be confined to those who are able to muster representation by twenty advocates? What about those who are now popularly referred to as “the poor and vulnerable?”.

In this passage, the Court clearly recognised the role of advocates in the conduct of these matters. The two appellants, right from the time their trial opened in the High Court, were each represented by an advocate. Their trial was before the High Court which by law is “the Constitutional Court” in Kenya. The appellants and their advocates knew or must have known that their constitutional rights had been violated. Yet the advocates raised no kind of complaint at all and as we have said the High Court is the constitutional court in Kenya and if the appellant’s advocates had raised the issue there, the Judge would have had to deal with the issue just as Mutungi, J. did in the NJOGU case, supra. When we asked Mr. Muthoni and Mr. Ng’ang’a why the advocates representing the appellants did not raise the matter with the Judge, their answer was that they did not know. An information before a judge is different from a charge-sheet before a magistrate. The charge sheet would normally show on its face the date on which an accused person was arrested and the date on which he is brought to court. An information does not have on it details such as the date of arrest. So that a magistrate is able to see at a glance the relevant particulars from which it can easily be deduced if section 72(3) of the Constitution has been complied with. A judge by merely looking at an information, will not be able to tell when the accused person was arrested. The date on which the offence was allegedly committed is not necessarily the date of the arrest. We think we cannot equate advocates to poor and illiterate accused persons and where an advocate is present in court and does not raise such relevant issues, the appellant whom the advocate represents must be taken to have waived his or her right to complain about alleged violations of his or her constitutional rights before being brought to court. Different considerations must continue to apply where an accused person is unrepresented. The advocates for these appellants could have easily raised their complaints with Okwengu, J. and we have no doubt she would have dealt with them and resolved them one way or the other. The appellants must now be treated as having waived the alleged violation of their constitutional rights and we reject the grounds of appeal dealing with these points.

On the evidence itself, there cannot be any doubt that during the material night a group of persons raided the home of the two deceased persons and the raiders did kill the two. As regards the 1st appellant, various witnesses who knew him before said they saw him and even heard him being called “Baba Nduta.”

Elias Waigwa Maina(PW3) not only saw the 1st appellant but also heard one of the deceased persons refer to him as “Baba Nduta”. Catherine Wanjiku Nyaga(PW6) not only saw the 1st appellant when the 1st appellant entered her house but said the 1st appellant even spoke to her asking her for some paraffin. PW6swore that before the attackers entered her house, she had put on some light. The 1st appellant was a person well known to her and it was the 1st appellant who ordered them to leave the house. She went on to narrate how she subsequently pleaded with the 1st appellant to spare her life and that it was the 1st appellant who took her back to her house and asked the children to open the door for her.

On our own independent assessment of the recorded word, we are satisfied that the evidence of recognition of the 1st appellant was simply overwhelming and we are satisfied, as were the trial Judge and the three assessors that the charge against the 1st appellant was proved beyond all reasonable doubts and that he was correctly convicted on the two charges. He was obviously the ring-leader of those who attacked the home.

As regards the 2nd appellant, we agree with Mr. Orinda, the learned Principal State Counsel, that he could have been wrongly implicated in the charges because of the various court cases he had with the family of the deceased persons. We agree that there were reasonable doubts left by the evidence on record and we think the learned Judge ought to have given him the benefit of doubt as she did with the 5th, 6thand 7th accused persons. We accordingly allow the appeal of the 2nd appellant on both counts, quash the two convictions and set aside the sentence of death imposed on him. He is to be released from prison forthwith unless otherwise held for some lawful cause.

We dismiss the appeal of the 1st appellant on both counts and confirm the sentence of death imposed on him on count one. These shall be our orders with respect to the two appeals.

Dated and delivered at Nyeri this 5th day of December, 2008.

R.S.C. OMOLO

…………………

JUDGE OF APPEAL

S.E.O. BOSIRE

…………………

JUDGE OF APPEAL

J. ALUOCH

………………..

JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR