[2019] KEHC 11306 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 49 OF 2018

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 50 OF 2018

MICHAEL MAKAU FIDEL...................................1ST APPELLANT

SYMOND MUTHINDA..........................................2ND APPELLANT

VERSUS

REPUBLIC...................................................................RESPONDENT

(An Appeal from the original conviction and sentence in the Chief Magistrate’s Court

at Makadara in Cr. Case No. 47 of 2014 deliveredby Hon. S. Jalang’o (SPM) on 9th March 2018).

JUDGMENT

1. The Appellants, Michael Makau Fideland Symond Muthinda were charged with the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 17th day of October 2014 at Kitui village Nairobi area within Nairobi County, jointly while armed with dangerous weapons namely knife robbed Serah Muthike of a mobile phone make Samsung and cash money Kshs. 500/= all valued at Kshs. 5,500/= and immediately before the time of such robbery threatened to use actual violence to the said Serah Muthike.The Appellants pleaded not guilty to the charge. Upon trial they were convicted of the same and sentenced to suffer death. Aggrieved by both their conviction and sentence, they preferred separate appeals which were consolidated for purposes of this judgment.

2. The Appellants raised separate grounds of Appeal in their respective Petitions of Appeal filed alongside their written submissions on 11th March, 2019. The 1st Appellant was aggrieved that the charge sheet was defective that Section 200 of the Criminal Procedure Codeand Article 50 (2) (j) of the Constitution were contravened and that the prosecution evidence was contradictory, inconsistent and unreliable.

3. On his part, the 2nd Appellant complained that the learned trial magistrate erred in law and fact when he convicted him on the evidence of identification and recognition by a single witness in difficult circumstance; convicted him on the basis of unsatisfactory evidence; conducted an irregular trial in contravention of the Bill of Rights as spelt in the Constitution; failed to find that most crucial witnesses did not testify; convicted him on a duplex charge and dismissed his defence.

Analysis and determination

4. The Appellants canvassed the appeal by way of written submissions which they respectively filed on 11th March, 2019. Learned State Counsel Ms. Nyauncho for the Respondent made oral submissions. Upon carefully reevaluating the evidence on record and considering the parties’ respective submissions, I find the issues for determination to be as follows; whether the charge sheet was defective for want of duplicity, whether the Appellants’ right to a fair trial was violated; whether the prosecution proved its case beyond reasonable doubt; and whether the death sentence was legal and proper.

5. Before delving into the analysis of the evidence, it suffices that the court first considers paramount legal issues that the Appellants raised. They submitted that the charge sheet was defective having been drawn under both Sections contrary 295as read with Section 296 (2) of the Penal Code”. They argued that this represented a duplicity of the charge which prejudiced them.

6. My view is that since each of the two provisions provide for distinct offences, each offence ought to be charged separately under each provision. The charge therefore having been drawn under both provisions means that it was duplex. See: Joseph Njuguna Mwaura & 2 Others v Republic[2013] eKLRinCourt of Appeal held that:

"We reiterate what has been stated by this Court (sic) in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge".

7. However, the test is whether the duplicity prejudiced the Appellants. In the case of Paul Katana Njuguna v Republic [2016] eKLRthe Court of Appeal held that:

“Having considered the law on duplicity as it has evolved, can we say that the charge as framed in the appeal before us was so defective as to have occasioned a failure of justice? Can it be said with any certainty that the said defect is incurable under Section 382 of the Penal Code. We observe that the offence under Section 295 and 296 (2) were not framed in the alternative.……..

39. We appreciate that Section 296 (2) of the Penal Code creates the offence of robbery with violence or aggravated robbery. In our view, the offence of robbery must first be demonstrated before proceeding to demonstrate the ingredients provided in Section 296 (2)of the Penal Code. As a corollary to this proposition, an accused person facing those charges would in defence seek to demonstrate that no offence of robbery was committed and that the ingredients alleged under Section 296 (2)were absent or were not demonstrated by the prosecution.

40. In the matter before us, we are unable to detect any prejudice which the appellant suffered. The record shows that the appellant suffered no confusion when the charge, as framed, was read to him and when the witnesses testified, he fully cross-examined them. He raised no complaint before both the trial court and before the High Court. So, while it would be undesirable to charge an accused person under both sections in the alternative, it would not be prejudicial to that accused person if the offences are not framed in the alternative. As we have already noted the rule against duplicity is to enable an accused know the case has to meet. We accept as the correct position in law that uncertainty in the mind of the accused is the vice at which the rule against duplicity is aimed. If there is no risk of confusion in the mind of the accused as to the charge framed and evidence presented, a charge which may be duplex will not be found to be fatally defective.

41. In this appeal, the appellant was fully aware of the case he was to meet when he was charged before the trial court and the charge as framed did not lead to a failure of justice. We must, therefore, reject the appellant's belated complaint that the alleged duplicity in count one of the charge caused him prejudice. We find that the defect if any, was in any event, curable under Section382 of the Criminal Procedure Code.”

8. In the instant case, the Appellants knew the charge they were facing. They pleaded to a specific charge and fully participated in the proceedings in defence of the offence of robbery with violence. They were therefore not prejudiced by the defect which is curable under Section382of theCriminal Procedure Code.

9. The Appellants also argued that rights to a fair trial were contravened, first, on the part of the 2nd Appellant that he was subjected to an unfair hearing as he was not informed that he had a right to legal representation as provided under Article 50 (2) (g) and (h) of the Constitution.

10. Legal representation is a constitutional right envisaged underArticle 50 (2) (g) and (h) of the Constitutionwhich provides as follows:

“Every accused person has the right to a fair trial, which includes the right-

g) to choose, and be represented by an advocate and be informed of this right promptly;

h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly….”

11. Indeed, there is nothing on the trial court’s record to show that the Appellants were informed of this right. It is well settled though thatlack of legal representation cannot bar the continuation of proceedings against a person unless substantial injustice is likely to occur. (SeeSection 43 (6)of theLegal Aid Act, 2016and the case of Republic v Karisa Chengo & 2 others [2017] eKLR). It is also well settled that the question as to whether substantial injustice may occur depends on the circumstances of each case.

12. The Appellants fully participated in the proceedings without iota of indicator that they had difficulties in cross examining the witnesses. In the circumstances, I am unable to hold that their constitutional right to a fair trial was violated and were therefore prejudiced merely because they were not represented by an advocate.

13. On the second limb, the 1st Appellant contended that they were forced to proceed with the trial even though they did not have copies of witness statements despite requesting for the same severally. He submitted that this contravened his constitutional right under Article 50 (2) (j) of the Constitution which requires that an accused person be informed in advance of the evidence that the prosecution intends to rely on and to have reasonable access to the same. However, a perusal of the proceedings reveals that the Appellants were given several opportunities to obtain witness statements but the 1st Appellant failed to do so citing financial constraints. Before PW1 testified, the 1st Appellant informed the court as follows;

“I am praying court issues me with statements and I am ready to proceed.”

14. Previously the court had indicated that it had no provision for availing statements to the accused persons and it maintained that stand. Two witnesses accordingly proceeded to testify. From the answer the 1st Appellant gave, it is clear that he was ready to proceed notwithstanding that the statements had not been provided. Weighing against the need to do justice, the court had no alternative but to proceed with case, more so having noted that the Appellants had previously occasioned adjournments.

15. The constitutional provision implies that the State bears the responsibility of proving the statements; after all, the case belongs to it, hence the legal burden to the prosecution to proof the case beyond a reasonable doubt. Where statements are not provided to an accused person, an injustice is likely to result as he is not able to prepare for his defence well in advance. In such instances, the court should direct that the accused persons be allowed to peruse the statements from the prosecutor’s file. That way, they should be in a position to ably defend themselves against the evidence the prosecution adduces.

16. To be precise, Article 50(2)(j) of the Constitution provides that;

“Every accused person has the right to a fair trial, which includes the right-

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”

17. Under Article 25 (c) of the Constitution, the right to a fair trial is non-derogable. Ultimately, the mere fact that the Appellants seems to have ably cross examined the prosecution witnesses does not imply that they sufficiently defended themselves, the absence of provision of witness statements notwithstanding. For this reason, I am of the candid view that the Appellants’ right to a fair trial was violated, reasons resulting in a total miscarriage of justice. This vitiated the entire trial rendering it a nullity. Consequently, the recourse available is to order a retrial.

18. In ordering a retrial, the court should take into account, inter alia, whether the retrial would result in a conviction, whether it would aid the prosecution in filling up gaps in its case and whether it would prejudice the accused person. The overall consideration should be that a retrial should serve the interests of justice.

19. The prosecution called a total of four witnesses. PW1 who was the complainant was confronted by the Appellants as she walked home from a bar where she was a waitress. She was beaten unconscious after which the Appellants robbed her of her belongings named in the charge sheet. She was treated for the injuries and issued with a P3 Form. She reported the matter at Shauri Moyo Police Station. In her report to the police and the arresting officer (PW2), she indicated she well knew her assailants because they not only frequented the bar in which she worked but had severally seen the 1st Appellant playing football in a nearby football field. She indeed gave their names to PW2. Additionally, the conditions for a positive identification prevailed at the scene. In all, my view is that the identification was by recognition. Hence, a retrial would most likely result in a conviction.

20. Each of the Appellants denied committing the offence. Indeed, the 2nd Appellant attributed his owes to the assertion that PW1 wanted him to be his boyfriend, an advance he declined. I find the respective defences without merit. I also find without merit that Section 200(3) of the Criminal Procedure was not complied with and that the minor inconsistencies in the prosecution case rendered a blow to their case.

21. Be that as it may, this is a trial that began in year 2014. The penalty provided under the law is a likely death sentence. However, taking into account that the Appellants were in remand throughout the trial, were first offenders and the injuries PW1 suffered were not so grave, I am of the view that the punishment attendant should just be sufficient to serve as a deterrent measure. As at date, they have cumulatively each been in custody for a period of three years and about seven years which I believe is sufficient sentence.

22. I accordingly quash the conviction, set aside the death sentence and order that both Appellants be forthwith set free unless otherwise lawfully held. It is so ordered.

DATED and DELIVERED 7TH DAY OF MAY, 2019.

G.W. NGENYE-MACHARIA

JUDGE

1. 1st Appellant in person.

2. 2nd Appellant in person.

3. Miss Akunja for the Respondent.