[2022] KEHC 847 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL CASE NO E011 OF 2021

REPUBLIC.......................................................................PROSECUTOR

VERSUS

1. COLLINS NDUNG’U KINYUA

2. LEE-FTINE WACHIRA MUTHONI

3. NEWTON MBUTHIA MUMBI

4. JOSEPH WAMBUGU MAINA

5. KELVIN NYUTU NJUGUNA..............................................ACCUSED

R U L I N G

1. The accused persons herein, in the amended information dated and filed in court on 09/03/2022, are charged with two counts. Count I one is murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the particulars of the offence that in the night of 21/10/2021 at Thome Boys Secondary School in Laikipia Central Sub-County within Laikipia County, they jointly murdered one BENSON WAWERU NGATIA.

2. In Count II they are charged with arson contrary to section 332(a) of the Penal Code. It is alleged that in the same night and at the same place, willfully and unlawfully, they jointly set fire to a building, namely the Central Dormitory, with students’ property therein, all valued at KShs 710,495/00, the property of Thome Boys Secondary School.

3. Plea upon the original information dated 17/11/2021 was taken on 01/12/2021. All the accused persons pleaded not guilty to the two charges. When the matter came up for fresh plea upon the amended information on 21/03/2022, learned counsel for the 3rd Accused, Mr. Njuguna Kimani, raised an issue regarding the information. He submitted that the information contains two separate offences allegedly committed at the same time and place, murder and arson. He further submitted that Count II (arson) was “unnecessary”, and that “lamping the two offences together would be splitting hairs”. He finished his submission by stating that it is improper to charge the two offences together and suggested that the prosecution should proceed only with the graver offence of murder.

4. The other two defence counsels, Miss Karunya and Mr. Kiget, associated themselves with the sentiments of Mr. Kimani without more.

5. In his response, learned prosecution counsel Mr. Motende submitted that the information is in order as it is as it discloses two distinct and separate offences, murder and arson, that arose out of the same transaction. He further submitted that this court has jurisdiction to try both offences, and that it would be desirable and prudent that both be tried by the same court as the evidence supporting both offences would be the same. That way, the prospect of conflicting conclusions upon the same facts by two different courts would be avoided.

6. It is to be noted that Mr. Kimani did not submit that the accused persons would be prejudiced or embarrassed in any way by being tried for the two offences together. He also cited no authority to support his concerns.

7. Perhaps there is no need for authority beyond the relevant statutory provisions regarding charges and informations. Section 134 of the Criminal Procedure Code, Cap 75 provides as follows –

“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.”

Andsection 135 of the same Code makes the following provisions regarding joinder of counts in a charge or information –

“(1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or similar character.

(2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

(3) Where, before trial, or at any stage of a trial, the court is of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of that charge or information.”

8. As has been readily appreciated by Mr. Kimani, the amended information contains statements of the specific offences, murder and arson, with which the accused persons are charged, together with particulars giving reasonable information as to the nature of the offences charged. I did not understand Mr. Kimani to raise any concern in this regard.

9. As for joinder of counts, subsection (1) of section 135 aforesaid is quite clear: any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of the same or similar character. Clearly the murder and arson charged in the present case are founded on the same facts as pointed out by Mr. Kimani himself. Secondly, the two offences charged have been separated into two counts, complete with a description of each offence set out in its own count, as is required by subsection (2) of the section.

10. Thirdly, though it has not been argued that the accused persons, or any of them, may be embarrassed in their defence by reason of being charged with more than one offence in the same information, or that for any other reason it is desirable to direct that the two offences be tried separately, the court retains the power to so order at any stage of the trial, as provided for in subsection (3) of the section.

11. It is to be noted that only the High Court, by current practices, can try the offence of murder. The court however, has unlimited criminal jurisdiction, and it certainly can try arson, which ordinarily would go before a magistrate’s court. However, with the two offences being founded on the same facts, it is desirable and prudent that they be tried by the same court, that is this court, to avoid conflicting appreciation and interpretation of the same facts by two separate courts, which would cause unnecessary embarrassment to the administration of justice.

12. The upshot is that this court finds absolutely nothing wrong or inappropriate with the amended information as it has been laid before the court. Plea will be taken upon it. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 22ND DAY OF MARCH 2022

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 31ST DAY OF MARCH 2022