[2008] KEHC 672 (KLR)
The court found that the trial magistrate who took over the case after the original magistrate's transfer did not comply with the mandatory requirements of Section 200(3) of the Criminal Procedure Code. This provision obligates the succeeding magistrate to inform the accused of the right to have any witness...
Source-derived case information.
- Citation
- [2008] KEHC 672 (KLR)
- Parties
- Appellant: Peter Kangethe Makari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 343 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
- Judges
- FI Koome, DK Maraga
- Legal Topics
- Robbery With Violence, Section 296 2 Penal Code, Section 200 Criminal Procedure Code, Failure to Inform Rights, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kangethe Makari
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate complied with Section 200(3) of the Criminal Procedure Code when taking over the case.
- 2 Whether failure to comply with Section 200(3) prejudiced the accused and invalidated the conviction.
- 3 Whether a re-trial should be ordered given the lapse of time since the alleged offence.
Ratio Decidendi
The court found that the trial magistrate who took over the case after the original magistrate's transfer did not comply with the mandatory requirements of Section 200(3) of the Criminal Procedure Code. This provision obligates the succeeding magistrate to inform the accused of the right to have any witness resummoned and reheard. The court determined that non-compliance with this procedural safeguard was prejudicial to the accused and rendered the conviction unsafe. Furthermore, given the significant lapse of time since the alleged offence (over ten years), the court held that a re-trial would not be feasible or just, as it would be impossible for the prosecution to marshal its...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 343 of 2004
PETER KANGETHE MAKARI…….…..………....APPELLANT
VERSUS
REPUBLIC…………………………………...…RESPONDENT
JUDGMENT
PETER KANGETHE MAKARI, the Appellant was in Nakuru CM Criminal Case No.2009 of 2003, charged with robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the charge against him were that on the night of 20th and 21st day of November 1997 at Milimani Estate Nakuru Township in the Nakuru District of Rift Valley Province jointly with others not before court, while armed with dangerous weapons, namely iron bars, simis, bolted rungus and swords they robbed Mary Wanjiru Mwangi of 47 items including cash all valued at Kshs.1,500,000/- and at or immediately before or immediately after the time of such robbery wounded Mary Wanjiru Mwangi. He pleaded not guilty but upon trial he was convicted and handed down the mandatory death sentence. He has now appealed to this court against both that conviction and sentence.
At the hearing of the appeal Mr. Mugambi learned state counsel conceded the appeal on the ground that the trial magistrate who took over the hearing of the case after the original magistrate had been transferred did not comply with Section 200(3) of the Criminal Procedure Code.
Section 200(1) of the Criminal Procedure Code states that where a magistrate after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may proceed with the case from where it had reached and determine it. Subsection (3) of that section provides that:-
“Where a succeeding magistrate commences that hearing of proceedings and part of the evidence had been recorded by his predecessor, the accused person may demand that any witness be resummoned and re-heard and the succeeding magistrate shall inform the Accused person of that right.”
There is no doubting that this is a mandatory provision and failure to comply with it may cause prejudice to the Accused person. We have ourselves perused the lower court record and noted that that provision was not complied with as correctly pointed out by Mr. Mugambi. In such a situation where an Accused person is convicted subsection (4) authorises the appellate court to set aside the conviction and order a re-trial. In this case Mr. Mugambi did not ask for a re-trial. As the offence was alleged to have been committed way back on the 20th November 1997, over ten years ago, even if Mr. Mugambi had sought a re-trial we could not have allowed it. After such a long period it would have been impossible for the prosecution to marshal its witnesses and conduct a re-trial. In the circumstances we allow this appeal, quash the conviction and set aside the sentence. The Appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered at Nakuru this 17th day of December 2008.
M. KOOME
JUDGE
D. K. MARAGA
JUDGE