[2022] KEHC 3037 (KLR)

Mbugua v Republic (Criminal Appeal 053 of 2021) [2022] KEHC 3037 (KLR) (Crim) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3037 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 053 of 2021

LN Mutende, J

May 4, 2022

Between

James Richard Mbugua

Appellant

and

Republic

Respondent

(Being an Appeal arising from the original charge in Traffic Case No. 3208 of 2019 at Chief Magistrates Court Kibera by Hon. W. Lopokoiyit. – RM)

Judgment

1. James Richard Mbugua, the Appellant was charged as follows:(i)Causing death by dangerous driving contrary to Section 46 of the Traffic Act, Cap 403 Laws of Kenya. Particulars being that on the 30th day of January 2019 at about 0510 hours along Kapenguria road within Nairobi County, being the driver of motor vehicle registration Number KCM 239A Make Isuzu Bus did drive the said motor vehicle in manner which was dangerours to the public and other road users, whereby he hit a pedestrian (Juvenile) namely Emmanuel Mwaniki who died on the spot.(ii)Failing to report an accident contrary to Section 73(3) as read with Section 75 of the Traffic Act, Cap 403 laws of Kenya. Particulars being that on the 30th day of January 2019 at about 0510 hours along Kapenguria road within Nairobi, being the driver of motor vehicle registration Number KCM 239A Make Isuzu Bus, failed to report to police a fatal accident involving his motor vehicle and a pedestrian.

2. The prosecution which presented the case, in an endeavor to prove it to the required standard called witnesses to testify. After the fourth witness testified before Hon. B. Ombewa, he was transferred and Hon. Lorot succeeded him. Pursuant to the law, he complied with Section 200 of the Criminal Procedure Code(CPC) where the accused person (Appellant herein) opted to proceed with the case from where it had reached. However, the matter did not proceed before him. He was succeeded by Hon. W. Lopokoiyit and Counsel representing the accused applied for the matter to be heard afresh. But, the trial magistrate opined that directions had been taken under Section 200 of the CPC and echoed the directions which had been given.

3. Dissatisfied by the order of the court the appellant herein preferred the instant appeal on grounds, that:1. The Honourable Learned Magistrate erred in law and facts by failing to appreciate that Section 200 of the Criminal Procedure Codewas couched in mandatory terms.2. The Honourable Learned Magistrate erred in law and fact by failing to appreciate that Section 200(3) provided that the accused person had a right to recall all witnesses in the event that a new presiding/trial/succeeding magistrate takes over the matter.3. The Honourable Learned Magistrate erred in law and fact by failing to appreciate that the accused person was unrepresented and therefore could not articulate the provisions of Section 200 and or understand the consequences therefrom.4. The Honourable Learned Magistrate erred in law and fact by not allowing the accused to recall witnesses.5. The Honourable Learned Magistrate erred in law and fact by failing to appreciate that the accused had not received legal advice when he accepted to proceed with the hearing.6. The Honourable learned Magistrate erred in law and in fact by failing to appreciate that even though the accused opted to proceed with the hearing, the matter never proceeded after the magistrate was transferred.7. The Honourable Learned Magistrate erred in law and fact by failing to consider the submissions of counsel for the accused or at all.8. The Honourable Learned Magistrate erred in law and fact by failing to appreciate that the accused, after receiving legal advice opted to exercise his rights to recall witnesses in accordance with the provisions of Section 200(3) and that the refusal by the trial Magistrate is/was tantamount to dictates of fair hearing.9. The Honourable Trial Magistrate erred in law and in fact by failing to appreciate that since he never recorded previous evidence, he was not privy to the demeanor, the conduct of witnesses and cannot ascertain their credibility.10. The Honourable Trial Magistrate erred in law and in fact by failing to appreciate that since the matter/case was coming before his court for the first time, Section 200 of the Criminal Procedure Code gained an automatic application.11. The Honourable Trial Magistrate erred in laW and in fact by failing to appreciate that failing to allow the accused to recall evidence was tantamount to denying the accused the right to a fair hearing protected under the Constitution;And prayed for the appeal to be allowed; the decision/order/ruling delivered on 24th May 2021 to be set aside so that the matter could start denovo.

4. The appeal was canvassed through written submissions. It was urged by learned counsel for the appellant, Mr. Wanyoike that Section 200(3) of the CPC is meant to protect the accused person and is couched in mandatory terms. That the applicant accepted to proceed but in itself was not finality since he can decide to change his position at any stage of the proceedings especially before the close of the prosecution’s case. That to get a fair trial, the trial Magistrate must ensure that the accused understands the implication of the provision of law so as not to suffer prejudice. In this regard he cited the case of Joseph Githuku Wangaiv. Republic (2005) eKLR; MudoolavRepublic EA No 125 of 1984 where the court held that:“No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.”

5. Then Ndegwa v Republic(1985) KLR 535 where Madan Kneller and Nyarangi JJA stated that:“It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case in our opinion. .... for these reasons we have stated, in our view the trial was unsatisfactory.”

6. That when the counsel came on record on the 25/5/2021 after the learned Magistrate had taken over (the matter) on the 26/4/2021, he made an application invoking Section 200 of the CPC which was denied and the learned Magistrate failed to give reasons for the rejection. Therefore, the trial was not fair.

7. The State/Respondent through learned Counsel, Mr. Mutuma, objected to the prayers sought on the grounds that the appeal offends the provision of Section 347(1) (a) and 350 of the Criminal Procedure Code. That the appeal is devoid of merit as Section 200 of the CPC was complied with and the succeeding Magistrate had not commenced hearing of the case.

8. This being a first appellate court it is duty bound to analyzeand evaluate evidence adduced at trial afresh so as to draw its own conclusions while bearing in mind that it neither saw nor heard witnesses who testified.

9. The gist of the contention by the appellant is the directions given by the court that he proceeds with the case following his option after the law was explained to him. Section 200(3) of the CPC provides thus: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

10. In the case of NdegwavRepublic (1985) eKLR it was stated that:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where exigencies of circumstances, not only are likely but will defeat the end of justice, if a succeeding Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”

11. In the case of Joseph Kamau GichukivRepublic(2013) the Court of Appeal stated that:“This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused”

12. Contrary to the argument of the applicant, the provision oflaw is not couched in mandatory terms. It is not a requirement of the law that a case should start denovo. What the court is obligated to do is to inform the accused and make it clear in details the legal provision as specified. That particular provision of law ought to be invoked where justice demands and both parties, not just the accused, but the complainant as well must be treated fairly.

13. In the case of Johanes AmadivRepublic (2018) eKLR the Court of Appeal stated that:“... Before a Judge proceeds with a trial in which another Judge has partly heard and recorded evidence, the accused person must be informed of his right to have the hearing proceed denovo or proceed from where the previous Judge had reached. Should the accused person choose to proceed with the trial from where it has reached, the court must inform him of his right to have any of the witness who have already testified re-summoned and re-heard.”

14. Looking at what transpired the record reads as follows:“Date: 27/8/2020Before Hon. A. Lorot – CMCourt Prosecutors: S C. MogereCourt Assistant: OmbunaAccused: PresentInterpretation: English/Kiswahili.Court: The matter is part heard. Section 200 CPC explained to accused.Court Prosecutor: I have the police file. We can take a date for further hearing.Court: Further hearing on 26/10/20”

15. “Date: 25/5/2021Before Hon. W. LopokoiyoyitCourt prosecutor – SC. OgolaCourt Assistant – DerrickAccused presentInterpretation: English/KiswahiliWanyoike for the accused person: This case has been handled by previous magistrates. It is in the interest of justice that the case starts a fresh. I pray section 200 Criminal Procedure Code be complied with and witnesses be recalled.Court: Directions on section 200 Criminal Procedure Code was taken on 27/8/2020 before Hon. Lorot and the accused elected for the case to proceed from where it had reached and therefore a hearing date was fixed. The case has never proceeded since then. The case still stands therefore I proceed from where it had reached.”

16. Section 200 of the CPC was Explained to the Accused and he stated that the case could go on from where it had reached. What was missing was the answer he gave to the question whether he required witnesses to be re-summoned.

17. Further, the record also shows that four (4) witnesses testified but the appellant did not put any question to them in cross examination. Subsequently, he instructed counsel of his choice pursuant to Article 50(2) (9) of the Constitution. Even if the learned trial magistrate was of the view that the accused person was accorded a fair trial, Section 146 of the Evidence Act grants the court the discretion to have witnesses re-called for further examination or further cross examination.

18. In the circumstances counsel having been retained at that stage, it would have been just to give him the opportunity of having witnesses recalled for further cross examination.

19. In the premised, I find the appeal having succeeded partially in that I set aside the order of the court which I substitute with an order requiring witnesses who had testified to be re-called for further cross-examination.

20. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Kiragu - ODPPMr. Wanyoike for the AppellantCourt Assistant – Mutai