[2008] KEHC 1547 (KLR)
The court found that the trial was fundamentally flawed due to the trial magistrate's failure to record the language used during the proceedings, which is a mandatory requirement to ensure a fair trial. Additionally, the conviction was based in part on a statement under inquiry that would now be inadmissible due to...
Source-derived case information.
- Citation
- [2008] KEHC 1547 (KLR)
- Parties
- Appellant: Moses Murage Githui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 141 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- MM Kasango
- Legal Topics
- Attempted Robbery With Violence, Juvenile Sentencing, Admissibility of Confessions, Language of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Murage Githui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for attempted robbery with violence was sustainable given the evidence adduced.
- 2 Whether the failure to record the language used during trial vitiated the proceedings.
- 3 Whether a retrial should be ordered in the circumstances of the case.
Ratio Decidendi
The court found that the trial was fundamentally flawed due to the trial magistrate's failure to record the language used during the proceedings, which is a mandatory requirement to ensure a fair trial. Additionally, the conviction was based in part on a statement under inquiry that would now be inadmissible due to changes in the law. The remaining prosecution evidence was weak and insufficient to sustain a conviction for attempted robbery with violence. Considering the likelihood that key witnesses would not be available for a retrial and the guiding principles on when to order a retrial, the court determined that a retrial would not be appropriate. Consequently, the conviction and...
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appellant's conviction by the lower court is quashed.
- The sentence imposed on the appellant is set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 141 of 2001
MOSES MURAGE GITHUI ……...………..……… APPELLANT
Versus
REPUBLIC ………………………..……………… RESPONDENT
(Being an appeal from the judgment of M. R. GITONGA, Senior Resident Magistrate, in the Chief Magistrate’s Criminal Case No. 4430 of 2001 at Nyeri)
JUDGMENT
The appellant was charged with attempted robbery with violence contrary to Section 297(2) of the Penal Code.After trial he was convicted as charged and was sentenced to be detained under the president’s pleasure because he was below the age of 18 years as stated by the learned trial magistrate. He was dissatisfied with the conviction and sentence and has accordingly brought this appeal. His co-accused was acquitted. The evidence against the appellant was that he attacked the complainant who was his employer with a nife. He also attacked a co-worker who responded to the cry of the complainant. Later on he disclosed to the complainant that he had been persuaded by his co accused to kill the complainant steal her car and take it to the co accused. The co accused was said to have been a mechanic in that area. As we began to consider this appeal we noted that the learned trial magistrate had afailed to record the language used during the trial. In the case of each and every witness for the prosecution and even in the case of the appellant and his co accused there is no record of the language used.
Copy cr. Case no. 46 of 2006 as shown in red page 3 to page 7
The evidence adduced in the lower court was that the appellant attacked the complaiant with a view to stealing a car. In this regard the prosecution relied on a statement under inquiry. In view of the change in the law such a statement would not now be admissible in evidence. With that in mind the prosecution’s evidence would not be very weak and not able to sustain a conviction for the charge the appellant faced. The attack on the complainant was witnessed by the appellant’s co-worker. There is some doubt we entertain whether the appellants co worker could still be in employement with the complainant. There was also evidence the appellant confided in other co workers and confirmed that his intention was to steal the motor vehicle. There is also doubt whether those co workers would be available if a retrial was ordered. On the whole bearing in mind the principles that should guide us in ordering a retrial and having considered the evidence of the lower court we find that we canot order a retrial. In the end the appellant’s appeal against conviction and sentence does succeed. We do hereby quash the appellant’s conviction by the lower court and set aside his sentence. We order the appellant to be set free unless otherwise lawfully held.
DATED AND DELIVERED THIS 22ND DAY OF JULY 2008
MARY KASANGO
JUDGE