[2010] KEHC 1610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Appeal 162,108,109 &119 of 2009

RICHARD MAINA MAKARI……………………………..….…….1ST APPELLANT

VERSUS

REPUBLIC………………………………………………………..……RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 108 OF 2009

GEORGE NJOGU GATHONI …………………………..…..……2ND APPELLANT

VERSUS

REPUBLIC…………………………………………………………….RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 109 OF 2009

DOUGLAS MURIUKI GATHATHU ………………….…..…….3RD APPELLANT

VERSUS

REPUBLIC…………………………………………………………….RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 119 OF 2009

PETER WACHIRA MAINA……………………………..…..……4TH APPELLANT

VERSUS

REPUBLIC…………………………………………………………….RESPONDENT

(Appeal from the original conviction and sentence of L. Mbugua, Ag. Principal Magistrate in the Senior Resident Magistrate’s Criminal Case No.158 of 2009 dated13th May 2009at Karatina)

JUDGMENT

RICHARD MAINA MAKARI, GEORGE NJOGU GATHONI, DOUGLAS MURIUKI GATHATHU,and PETER WACHIRA MAINA,the 1st, 2nd, 3rd and 4th appellants respectively, were arraigned before the Principal Magistrate’s Court sitting at Karatina to face a charge of two counts.In the first count, the quartet were jointly charged for the offence of kidnapping a child under the age of 14 years contrary toSection 262of the Penal Code.The record shows that the charge sheet was later amended on2nd March 2009so that the section the Appellants faced was deleted and substituted withSection 255as read withSection 257of the Penal Code in count I.In count II, Peter Wachira Maina, (4th appellant) faced a charge of threatening to murder contrary toSection 223 (1)of the Penal Code.After undergoing a full trial, the Appellants were convicted in count I and were each sentenced to seven (7) years imprisonment.The 4thAppellant was also convicted in count II and sentenced to serve seven (7) years imprisonment.Being aggrieved, the appellants each preferred an appeal i.e.

Richard Maina Makari……….Criminal Appeal 162 of 2009.

George Njogu Gathoni……….Criminal Appeal 120 of 2009.

Douglas Gathathu…………………Criminal Appeal 109 of 2009

Peter Wachira Maina…………….Criminal Appeal 119 of 2009.

The aforesaid appeals were consolidated by an order of this court made on11th February 2010. When the consolidated appeal came up for hearing, the 1st, 2nd and 4th accused persons were granted leave to file and rely on written submissions.Mr. Muthigani, learned counsel for Douglas Muriuki Gathathu (3rd appellant), made oral submissions.Mr. Makura, learned Senior State Counsel, conceded the appeal for the reasons I will later revisit in this judgment.

The background of this appeal is not complicated.The particulars in count I are that on13th February 2009, atGiakaibeiVillagein Nyeri North District withinCentralProvince, the accused persons are alleged to have jointly kidnapped or abducted one A. W. K, a child under the age of 14 years with intent to steal her from E. K. W.In count II, the particulars of the offence are that on14th February 2009atGiakaibeiVillagein Nyeri North District, Peter Wachira Maina, 4th Accused herein, without lawful excuse caused one Peter Munyiri Waweru to receive a message of threat to kill him.A. W.K (P.W.1), the complainant herein, a class 3 pupil atW.NAcademy, left the aforesaid school for home at4. 45 p.m.on13th February 2009. She left with A.N.M (P.W. 2).As they walked a white motor vehicle with tinted windows pulled by.Someone came out of that motor vehicle, called out P.W. 1 by the name ‘A’.She was immediately pulled and pushed into the aforesaid motor vehicle and the motor vehicle drove off.The commotion took place under the watchful eye of P.W. 2. P.W. 2 met P.W. 1’s mother (P.W. 3) and informed her of what she had witnessed.P.W. 3 made frantic efforts to trace the whereabouts of her daughter (P.W. 1).At Makuyu road block, Richard Maina Makari (1st Appellant), and George Njogu Gathoni (2nd Appellant) and the complainant (P.W.1) alighted from a matatu and that is where the Police intercepted them.JOHN MWANGI (P.W.4), a matatu driver told the trial court that the trio boarded his matatu at Kibirigwi.It is the evidence of P.W. 2 that the 3rd Appellant was the one who was asked by the 2nd Appellant to inform the complainant to pick up a receipt to take to her mother (P.W.3) from motor vehicle registration No. KAD 387 M.The aforesaid motor vehicle is a taxi operated by the 3rd Appellant within Karatina town. The 4th Appellant is said to be the person who pulled and pushed the complainant into the white motor vehicle at Giakaibei.In respect of count II, PETER MUNYIRI WAWERU (P.W.6), told the trial court that he received threatening messages and calls from cell phone No. “O737334672”.The message was to the effect that unless the 1st-3rd Appellants are released, P.W. 6 and his family would be killed. I. P. JEREMIAH NDUBAI, (P.W. 10), managed to retrieve the sim card in respect of cell phone No. 0737334672 from the 4th Appellant.

The Appellants each denied having committed the offence when placed in their defence.

On appeal, the Appellants each listed various grounds in support of their appeals.The 1st appellant stated that he was convicted on contradictory evidence while the 2nd Appellant was of the view that the evidence tendered did not prove the offence he was convicted for.Mr. Muthigani for the 3rd Appellant, was of the view that the Appellants were convicted underSection 262yet the charge sheet had been amended to includeSection 255as read withSection 257in place ofSection 262. According to Mr. Muthigani, the defence was blurred by the confusion created by the amendment and judgment.It is also stated that there was no evidence proving common intention.Mr. Makura, learned Senior State Counsel, conceded the appeal on various grounds. First, it is his submission that the charge was incurably defective in that the same was duplex.I have considered this ground and with respect, I agree with the submissions of Mr. Makura.A careful perusal ofSection 255of the Penal Code, will reveal that the particulars of the charge of kidnapping must contain the age and sex of the child.The charge in this appeal talks of a child under the age of 14 years.The second ground which the learned Senior State Counsel relied in conceding this appeal is to the effect that the learned trial magistrate introduced extraneous matters like the doctrine ofresgestae.With respect, I do not agree with Mr. Makura.The learned Principal Magistrate was perfectly entitled to draw her conclusions from the sequence of events taking place.The third ground Mr. Makura used to concede the appeal is that the learned Principal magistrate shifted the burden of proof.I have carefully considered the judgment and the evidence tendered.It is obvious from the judgment of the learned Principal Magistrate that she shifted the burden of proof to the 3rd and 4th Appellants.In respect of the 3rd Appellant, it is on record that the learned Principal Magistrate clearly stated that the 3rd Accused (3rd Appellant) did not show he was innocent in the saga.In regard to the 4th Appellant, the learned Principal Magistrate stated that the 4th Accused (4th Appellant) did not give a plausible explanation of his whereabouts.The law requires that an accused is entitled to set up a defence of alibi and that the prosecution was bound to rebut it.With respect, I agree with the submissions of Mr. Makura that the learned trial Principal Magistrate erred by shifting the burden of proof to the accused persons yet the law required the prosecution to discharge the burden.It would appear the learned Principal magistrate misdirected herself when she stated that the 2nd Accused (2nd Appellant), did not rebut the evidence of P.W. 1 and P.W. 2. Mr. Makura, further pointed out that the second count was defective in thatSection 223of the Penal Code talks of threatening to kill while the charge sheet talks of threatening to murder.Again, I agree with the submissions of Mr. Makura that the offence set out in count II is not known in law hence the charge is fatally defective.

The overall picture I get from the proceedings taken before the trial court is that, the Appellants’ trial was conducted in a manner which prejudiced their right to a fair trial.I contemplated to order for a retrial because I have formed the opinion that on a proper consideration of the admissible evidence, a conviction may result.But, in view of the defects on the charge, pointed out by Mr. Makura, learned Senior State Counsel and Mr. Muthigani, learned advocate for the 3rd Appellant, I will not make the order.If I order for a fresh trial, the prosecution may at the opportune time correct the errors hence sealing the gapping loopholes.I will give the Appellants the benefit of doubt.I hereby allow the consolidated appeals.The conviction and sentences are quashed and set aside respectively.The Appellants are hereby set free forthwith unless lawfully held.

Dated and delivered at Nyeri this 9th day of July 2010.

J. K. SERGON

JUDGE

In open court in the presence of the Appellants and Mr. Makura for the State.