[2011] KEHC 2402 (KLR)
The court found that the trial magistrate failed to comply with section 200 of the Criminal Procedure Code by not explaining to the appellant his rights when the case was taken over by a new magistrate. The appellant requested the recall of witnesses, but this was not granted, resulting in material prejudice and a...
Source-derived case information.
- Citation
- [2011] KEHC 2402 (KLR)
- Parties
- Appellant: Michael Masete Ali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 5 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; no retrial ordered
- Legal Topics
- Robbery With Violence, Section 200 Penal Code, Trial Irregularities, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Michael Masete Ali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court complied with section 200 of the Criminal Procedure Code regarding the rights of the accused when a new magistrate takes over a part-heard case.
- 2 Whether the failure to recall prosecution witnesses prejudiced the appellant and resulted in a miscarriage of justice.
- 3 Whether the evidence on record was sufficient to sustain a conviction or justify a retrial.
Ratio Decidendi
The court found that the trial magistrate failed to comply with section 200 of the Criminal Procedure Code by not explaining to the appellant his rights when the case was taken over by a new magistrate. The appellant requested the recall of witnesses, but this was not granted, resulting in material prejudice and a miscarriage of justice. The court further determined that the evidence on record, particularly the identification evidence, was insufficient to sustain a conviction or justify a retrial. As a result, the conviction and sentence were set aside, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction and sentence set aside; no retrial ordered
Orders
- The conviction and sentence recorded by the trial court are set aside.
- The appellant is to be released immediately unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO.5OF 2008
MICHAEL MASETE ALI.………………………….…………..APPELLANT
VERSUS
REPUBLIC ………………….………………………………….RESPONDENT
(From the original conviction and sentence in Criminal Case No.227 of 2005 of the Chief Magistrate’s Court at Nairobi
by M. W. Murage (Mrs.)- Senior Principal Magistrate
JUDGEMENT
The appellant was charged with 8 counts, six of which was of robbery with violence contrary to section 296(2) and two attempted robbery with violence contrary to section 297(2) of the Penal Code. After full trial appellant was convicted in count 1 only and sentenced to suffer death as provided by law, hence this appeal.
It is clear that the trial commenced before Mrs. Muigai – Principal Magistrate on 9th January 2006. The said court took the evidence of six witnesses before the matter was taken over by another magistrate.
On 19th April, 2007 the case was listed before Mrs. Murage Ag. SPM. The prosecutor informed court that six witnesses had testified and that there were only two remaining witnesses before the case could be concluded. The prosecutor also sought direction as to the way forward from the said court.The appellant indicated to court that he wished to have the witnesses recalled. The said court then ruled section 200 complied with and proceeded with the case. It was then that the evidence of PW7 and PW8 was taken by the succeeding magistrate. The said court also took the defence of the appellant.
The question that arises is whether the succeeding magistrate truly and strictly complied with section 200 (3).It is clear that the trial court did not explain to the appellant of his rights under section 200. To be fair, to the trial court and appellant, there is no evidence to show that section 200 was complied with. It is clear, the appellant requested for the recalling of all prosecution witnesses who had given evidence before the magistrate who earlier recorded the evidence of PW1 to PW6. In that regard therefore, we think the appellant was prejudiced by the failure of the trial court to indicate whether the rights under section 200 was explained in a satisfactory manner to the appellant.
The appellant expressed a desire to have the witnesses recalled and that opportunity was not accorded to him. The failure to explain and accord the appellant an opportunity to elect on the mode and procedure clearly resulted in a miscarriage of justice. We therefore think the appellant was materially prejudiced by the failure to comply with section 200. Consequently we set aside the conviction and the sentence resulting therefrom.
The only question is whether we should order for a retrial. We have noted that the basis of the appellant’s conviction was evidence of PW1 who allegedly identified the appellant at the scene. The appellant was arrested on 15th January 2005 and arraigned in court on 31st January 2005. The subject robbery occurred on 25th October 2004. It is not clear from the evidence on record as to the circumstances and why the appellant was arrested. There is no evidence that PW1 gave descriptions fitting the appellant to the police which led to his subsequent arrest. In any case, PW1 indicated that she did not identify the persons who attacked her.We therefore think the evidence on record is insufficient to sustain a proper conviction if we order for a retrial. Consequently, we feel there is no need to order for a retrial since the evidence on record cannot return a verdict of guilty. We refuse to order for a retrial. In that regard, we set aside the conviction and sentence recorded by the trial court and order for the immediate release of the appellant unless lawfully held.
Dated, signed and delivered at Nairobi this 19th day of May 2011.
J. KHAMINWA M. WARSAME
JUDGEJUDGE