[2010] KEHC 1292 (KLR)
The court found that the trial was fatally flawed because the magistrate who took over the case failed to comply with section 200(3) of the Criminal Procedure Code, which mandates that an accused person be informed of the right to recall witnesses and that their response be recorded. This omission constituted a...
Source-derived case information.
- Citation
- [2010] KEHC 1292 (KLR)
- Parties
- Appellant: Ronald Juma Buteta; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 106 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- FN Muchemi
- Legal Topics
- Unlawful Cultivation of Bhang, Possession of Ammunition, Procedural Irregularity, Right to Recall Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Juma Buteta
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 upon taking over the case.
- 2 Whether non-compliance with section 200(3) rendered the proceedings null and void.
- 3 Whether the appellant's constitutional rights under section 72(3) of the Constitution were violated.
Ratio Decidendi
The court found that the trial was fatally flawed because the magistrate who took over the case failed to comply with section 200(3) of the Criminal Procedure Code, which mandates that an accused person be informed of the right to recall witnesses and that their response be recorded. This omission constituted a violation of the accused's procedural rights, rendering the entire proceedings null and void. Consequently, the convictions and sentences imposed by the trial court were set aside. The court declined to make a finding on the alleged violation of constitutional rights under section 72(3) of the Constitution, as the issue was not raised during trial, thereby depriving the State of an...
Court Disposition
appeal_allowed
Orders
- The convictions and sentences imposed by the trial court are set aside.
- The appellant is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 106 of 2007
RONALD JUMA BUTETA:::::::::::::::::::::::::::APPELLANT
~VRS~
REPUBLIC:::::::::::::::::::::::::::RESPONDENT
JUDGMENT
The Appellant Ronald Juma Buteta appeals against the judgment of Bungoma Senior Resident Magistrate in Criminal Case Number 2842 of 2004. In count 1, the Appellant was convicted of the offence of unlawful cultivation of a prohibited plant namely bhang contrary to section 6 (a) of the Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994 and sentenced to serve five (5) years imprisonment.He was to be under police supervision for three (3) years on completion of sentence.In count II, the Appellant was convicted of being in possession of 200 rounds of ammunition contrary to section 4 (1) as read with 4 (3) of the Firearms Act Cap 114 of the Laws of Kenya and sentenced to serve 18 months imprisonment.The two sentences were to run concurrently.
In his memorandum of appeal, the Appellant faulted the convictions on the grounds that the case was not proved to the standards required and that his Constitutional rights were violated under section 72 (3) of the Constitution.
When the appeal was called for hearing, the state conceded to the appeal.The State Counsel, Mrs. Leting told the court that the case was heard by two magistrates Mr. K. Ngomo, Senior Principal Magistrate and Mr. Sogomo, Resident Magistrate.When Mr. Sogomo took over the case, he did not comply with section 200 (3) of the Criminal Procedure Code.The state considered that the Appellant has served the better part of the sentence and for that reason did not apply for retrial.I agree with the state on this point that a retrial would not servethe interests of justice.
On perusal of the record, it is evident that Mr. K. Ngomo heard all the five (5) prosecution witnesses.Mr. G. Sogomo heard the defence case and finally disposed of the case.On16/08/2007when Mr. Sogomo took over the case, he did not apply the provisions of section 200 of the Criminal Procedure Code (C.P.C) at that stage of the trial.Section 200 (3) requires that the succeeding magistrate informs the accused of his right to recall all the witnesses who have testified.The response of the accused must be recorded.In the proceedings of the material day, there was no mention of section 200 of the C.P.C or even its provisions.This was a violation of the rights of the accused under the section.Non-compliance with those provisions renders the whole proceedings null and void.I find that the rights of the accused person were violated and I declare the proceedings of the trial court null and void.
The convictions and sentences imposed are hereby set aside.The Appellant did not pursue the issue of violation of his rights under section 72 (3) of the Constitution during the hearing of the appeal.I note that the issue was not raised during the trial and therefore deprives the state of the opportunityto explain the delay.For that reason, I am not convinced that there is a good ground for making a declaration of such violation.If I am proved wrong, the provisions of the remedy under section 72 (6) of the Constitution may be utilized.
The Appellant is hereby set at liberty unless otherwise lawfully held.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma this 19thday of October, 2010. In the presence of the Appellant and the State Counsel Mrs. Leting.
F. N. MUCHEMI
JUDGE