[2023] KEHC 26233 (KLR)

Murungi v Republic (Criminal Appeal E230 of 2019) [2023] KEHC 26233 (KLR) (Crim) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26233 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E230 of 2019

GL Nzioka, J

November 9, 2023

Between

Jeremiah Kinyua Murungi

Appellant

and

Republic

Respondent

(Being an appeal against judgment of; Hon. E. Riany, Senior Resident Magistrate, (SRM) delivered on, 31st October, 2019, vide Traffic Case No. 12974 of 2019, at the Chief Magistrate’s Court at Nairobi)

Judgment

1. The appellant was arraigned before the Chief Magistrate’s Court at, Nairobi charged vide Traffic Case No. 12974 of 2019, with the offence of using a motor vehicle on a public road while fitted with worn out tyres contrary to section 55(1) of Traffic Act (Cap 403) Laws of Kenya (herein ‘the Act”) as read with section 58(1) of the Act.

2. The particulars of the charge are that, on 29th May 2019, at about 10:00am along Haile Selassie Avenue within Nairobi County, the appellant being the driver of motor vehicle registration number KCH 055Z make I/M/B used the said motor vehicle on a public road while fitted with one (1) worn out tyre.

3. The prosecution, called three (3) witnesses in support of its case The prosecution case in brief is that, on the material date, (PW1), No. 78808 PC Jeremy Mugambi and (PW2) No. 81302 PC Paul Maraka, attached to Traffic Nairobi Area were on normal patrol duty when they stopped the appellant’s subject motor vehicle for the normal police check and noticed that it had a worn out tyre.

4. That the appellant was arrested and the motor vehicle detained for inspection. The vehicle was inspected by (PW3) Mr. Kivui Collins, a Motor Vehicle Inspector who produced the inspection report showing that, both rear tyres and seat covers were worn out and declared the vehicle declared. The appellant was charged accordingly.

5. At the close of the prosecution case the appellant was placed on his defence and, in a sworn statement he testified that he is a Public Service Vehicle (PSV) driver and that on the material date, he was driving the subject motor vehicle since its usual driver was unwell.

6. That he was arrested and told the rear tyre was worn out on the left and right outer but he did not agree with the same, as Orokise Sacco whom he was working for, has a Secretary in the office who deal with any issues concerning the vehicles.

7. At the conclusion of the trial, the learned trial Magistrate found that the prosecution had proved its case beyond reasonable doubt, convicted and sentenced the appellant to pay a fine of twenty thousand shillings (Kshs 20,000) in default to serve one (1) month imprisonment. The appellant paid the fine and was released.

8. However, he is aggrieved by the decision of the trial court and filed a petition of appeal dated; 14th November 2019, wherein he seeks that the appeal be allowed, the decision of the subordinate court be reversed, an order for acquittal and reimbursement of fine be made.

9. The appeal is based on the grounds as here below reproduced;-a.That the learned Hon. Magistrate erred in both law and fact by convicting the Appellant on inconsistent and uncorroborated evidence which did not dislodge the defense tendered by the Appellant.b.That the learned Hon. Magistrate erred in both law and fact by convicting the appellant after the prosecution failed to prove their case beyond reasonable doubt, and more so in proving that the tyres of the motor vehicle he was driving were worn out.c.That the learned Hon. Magistrate erred in both law and fact by convicting the Appellant despite the existence of screaming contractions which were major and fatal to the prosecution’s case.d.That the learned Hon. Magistrate erred in both law and fact by failing to make a finding that material witnesses and evidence was not availed at the detriment of the prosecution’s case leading to an inference of not guilty.e.That the learned Hon. Magistrate erred in both law and fact by admitting a defective charge sheet for the particulars were not in tandem with the law.

10. However the appeal was opposed vide grounds of opposition dated; 23rd May 2022, as here below reproduced; -a.The Appeal lacks merit, is misconceived and unsubstantiated.b.The appellant was properly convicted before the trial court and the prosecution did discharge it’s burden of proof beyond reasonable doubt.c.The appellant has not demonstrated any special or unusual circumstances to warrant his appeal upheld.d.That the appeal lacks merit and the same should be dismissed in its entirety.

11. The appeal was disposed of vide filing of submissions. The appellant filed submissions dated; 24th May 2022 and argued that, he was prejudiced by the manner in which the trial court conducted the proceedings in that, the court as evidenced by the proceedings of 29th July 2019, made an order“suo moto” that, the subject vehicle be inspected and a report availed to court, despite the fact that, the prosecution had not made a request for the same.

12. Further, the proceedings of 30th July 2019, do not indicate who produced the physical motor vehicle, and/or the inspection report on yet the trial court in its judgement held that defects were noted on the subject vehicle when it was produced in court before hearing. Furthermore, the subject proceedings of 30th July 2019, cannot be construed as a vehicle identification exercise since no prosecution witness was present to lead the evidence thus the observation by the trial court was baseless.

13. He relied on the case of Abdiaziz Abdullahi Abdi v Republic [2018] eKLR where court observed that, the procedure by the trial court to visit the scene suo moto and give an order for destruction of items was strange since the matter was not for hearing on that date, and no prosecution witness was present to explain and to be cross-examined by the suspects. That there was no indication as to who was showing the trial court the items to be destroyed. Therefore, the lack of participation by the suspects was a violation of their right to a fair hearing under Article 50(1) of the Constitution of Kenya, 2010.

14. The appellant further argued that, the charge sheet was defective for lack of clarity and inadequacy of information. That, the particulars of the charge did not provide the most important ingredient of the offence under section 55 (1) of the Traffic Act, in regard to worn out tyres and the condition that the tyres should be maintained at all times, for the vehicle not to be a danger to other road users or persons travelling therein.

15. The appellant relied on the case of; Joseph Alumasa Oyasi v Republic [2012] eKLR where the court held that the charge sheet was defective for omitting the word “knowingly” used under section 367(a) of the Penal Code (Cap 63) of the Laws of Kenya, and that knowledge is an essential ingredient of the offence of possession under the section and thus pivotal for the offence.

16. It was the appellant’s further argument that, the evidence produced was not sufficient to justify a conviction as it was riddled with serious contradictions and inconsistencies that went into the root of the case, which would have been cured if the investigating officer was called to testify. Furthermore, ordinarily it is the mandate of the owner of the vehicle to maintain it in a good and road worthy condition and not the driver, who is an employee, thus charging the appellant was misplaced.

17. However, the respondent vide submissions dated; 22nd November, 2022 argued that, the prosecution proved its case beyond reasonable doubt. That, (PW3) Kirui Colloins, the Motor Vehicle Inspector produced the vehicle inspection report which indicated that the motor vehicle had worn out; seats, seat covers and tyres. That the subject report was corroborated by the evidence of all the prosecution witness.

18. At the conclusion of the hearing of the appeal and considering the arguments advanced, I note that, the role of the first appellate court is to re-evaluate the evidence afresh and arrive at its own conclusion, bearing in mind that the court did not have the benefit of the demeanour of the witnesses.

19. In that regard, the Court of Appeal thus stated in the case of; Okeno vs. Republic (1972) EA 32 that : -“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that, the trial court has had the advantage of hearing and seeing the witnesses”

20. Be that as it were, the appellant’s grounds of appeal herein can be summarized as follows; defective charge sheet, contradictions in the evidence, failure to call crucial witnesses and/or unfair trial.

21. In that regard, I shall first deal with the issue of defective charge sheet. The law on the same is stipulated under section 234 of the Criminal Procedure Code which provides that: -“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

22. Further, in the case of; Thomas Mutune v Republic [2020] eKLR, the Court of Appeal stated as follows: -“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge. This principle of the law has a constitutional under pinning.However, whatever the irregularity, it is not to be regarded as fatal unless there is prejudice to the person who is charged. It is the substance that the ourt must seek to ascertain. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the ball is lost in the labyrinth of insubstantial technicalities.”

23. Furthermore, in the case of; Jason Akumu Yongo v Republic [1983] eKLR the Court of Appeal stated as follows: -“In our opinion, a charge is defective under section 214(1) of the Criminal Procedure Code where:a)it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; orb)it does not, for such reasons, accord with the evidence given at the trial; orc)it gives a misdescription of the alleged offence in its particulars.”

24. Similarly, in the case of Benard Ombuna v Republic [2019] eKLR the Court of Appeal stated as follows: -15. In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

25. In addition to the afore legal principles, section 382 of the Criminal Procedure Code states that: -“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:…”

26. Thus the key issue is whether the charge sheet was defective in such a manner that the accused was prejudiced by the trial and/or outcome. In the instant matter, the manner in which the charge is framed clearly states the offence, particulars of the charge which indicates: date, time, place when the offence was allegedly committed, motor vehicle involved, driver thereof and the defective parts. Thus all the particulars are clearly spelt out in the charge sheet.

27. In addition, the appellant fully participated in the trial answering to the charge to defence case. Therefore, it is the finding of the court that, the particulars of the charge were adequate to have informed the appellant of the offence he was charged with and he indeed pleaded not guilty thereto when the same was read out and fully participated in the case. Thus he was not prejudiced in any way and the argument on defective charge is dismissed.

28. As regards the argument of inconsistent evidence and failure to call crucial witnesses, I find the same unsubstantiated and dismiss it. However, as regards the manner in which the trial court conducted the case, I note that, the main contention is the production in the trial court of the physical vehicle and/or inspection report.

29. In that regard, (PW1) No. 78808 PC Jeremy Mugambi and (PW2) No. 81302 PC Paul Maraka testified that they detained the vehicle after arresting the appellant. It does appear when the appellant was arraigned in court on 29th July 2019, the vehicle and/or the report were not availed.

30. However, the record of the trial court on that dates indicates that, after the court ordered the appellant to be released on cash bail of Kenya shillings twenty thousand (Kshs 20,000), the trial court went ahead and ordered that the “vehicle be inspected and availed on 30th July 2019”. Indeed, there is no indication on the record that the prosecution applied for an order for inspection and/or availability of the vehicle. Thus the order was made by the court suo moto.

31. Furthermore, the trial court’s record of 30th July 2019 indicates that the trial court noted that the; “vehicle availed plus inspection report” and again there is no indication that, the court was not moved and seems to have acted suo moto. Similarly, the trial court’s record of 30th July, 2019, also indicates that the accused maintained a plea of not guilty but there is no indication that the charge was read to him afresh.

32. It is noteworthy that, the evidence of the motor vehicle inspection report was at the centre of the case, either for conviction or acquittal.In my considered opinion, the manner in which the proceedings were conducted on both the 29th and 30th July, 2019, amounted to assisting the prosecution to assemble evidence against the appellant and rendered the entire process of trial unfair.

33. The upshot of the aforesaid is that, the trial was not fair as anticipated under Article 50 of the Constitution of Kenya, 2010 as such the conviction cannot stand.

34. The question is what orders should the court make. It suffices to note that, the law requires that an offender should answer for wrong doing and therefore the appropriate order herein should be an order for a retrial.

35. However, taking into account that, it has been over four (4) years since the alleged offence occurred, it is possible the circumstances may have changed, the vehicle and/or witnesses may not be easily available and considering the period the trial has taken, I find that, it is not in the interest of justice to order a retrial.

36. In the given circumstances, I quash the conviction and set aside the sentence. Consequently, I order that any fine paid be refunded to the appellant unless it is lawfully held.

37. It is so ordered.

DATED, DELIVERED AND SIGNED THIS 9TH DAY OF NOVEMBER, 2023GRACE L. NZIOKAJUDGEIn the presence of:Mr. Chacha Mwita for the appellantMs. Mogoi for the StateMs. Ogutu court assistant