[2023] KEHC 26877 (KLR)

Saru v Republic (Criminal Appeal E101 of 2022) [2023] KEHC 26877 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26877 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E101 of 2022

RPV Wendoh, J

December 14, 2023

Between

George Otieno Saru

Appellant

and

Republic

Respondent

(From original conviction and sentence by Hon. J. Munguti – Senior Principal Magistrate in Senior Principal Magistrate’s Court S.O. NO. E 223 OF 2020 delivered on 15/9/2022)

Judgment

1. George Otieno Saru, (Appellant) was charged with four counts of threatening to kill contrary to Section 223 (1) of the Penal Code. The particulars of the charges are that on 3/11/2020 at Siling Area in Suna East Sub County, without lawful excuse, uttered words “nitakata kata wewe na panga hadi nukumalize” words directed at Joyvet Sarah Okinyi.

2. In count 11, h e is alleged to have uttered the words “niliua Ndugu yako, hata wewee lazima nitakuua” words directed at Samson Odongo Okeyo;

3. In Count III, he is alleged to have uttered the words “niliua Jared Okinyi hata wewe lazima nikuue”

4. In Count IV, the appellant is alleged to have uttered the words “wewe ni mwizi wa Ng’ombe lazima nikuue words directed at Martin Ndori Kisago.”

5. The appellant was convicted and sentenced to serve ten (10) years imprisonment. He is aggrieved by the conviction and sentence and filed this appeal based on the following grounds:-1. That the appellant’s rights under Article 50 (2) (g) and (h) were violated;2. That the court failed to comply with Article 49 (1) of the Constitution;3. That the offence was not proved to the required standard;4. That the sentence is harsh and excessive

6. The appellant filed submissions reiterating the said grounds of appeal; that his rights under Article 50 (2) (g) and (h) of the Constitution were not explained to him; that he was arrested on 13/11/2020 and presented to court on 23/11/2020 and the delay was not explained; that the time when he allegedly uttered the words was not disclosed and the witnesses’ testimonies were contradictory as to when the offence was committed; that the witnesses did not tell the court how they were able to identify him and lastly testify that the sentence is harsh and excessive considering he was a first offender and his mitigation.

7. The prosecution counsel filed his submissions and conceded the fact that the record does not show that Article 50 (2) (g) and (h) was explained to the appellant. He argued that courts have held that failure to comply with Article 49 (l) (f) that gurantees one the right to be brought to court within twenty four (24) hours after arrest does not necessarily result in nullifying the proceedings but that the applicant can seek redress under Article 23 of the Constitution.

8. Counsel also observed that the trial court did not seem to have made any finding on counts 2, 3 and 4 and gave the appellant one sentence yet there is no indication that the charges were withdrawn. He urged the court to order a retrial because of failure by the trial court to comply with Article 50 (2) (g), which was not complied with and failure to do so resulted in the proceedings being rendered a nullity as was held in Mwita &anotherv Republic Criminal Appeal No. 22 of 2019.

9. The prosecution called a total of nine witnesses while the defence called a total of three witnesses.

10. Article 50 (2) (g) and (h) provides for50(2) Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly.

11. I think that even before considering whether the appeal has merit or not, the appellant having alleged breach of his rights guaranteed under Article 50 (2) (g) of the Constitution, I must look at the court record to ascertain whether or not it was complied with.

12. By dint of Article 25 (c) the rights under Article 50 (2) cannot be abrogated. Under Article 50 (2) (g) the court has a duty to inform an accused of his right to counsel of his own choice at the earliest time possible . In the South African case of Mphukwa v S (CA& R 360 /2004) (2012) ZAECGHC 6 the court said:-A general duty on the part of judicial officers to ensure that unrepresented accused fully understood their rights and the recognition that in the absence of such understanding a fair trial may not take place.If there is a duty upon Judicial Officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused. Such an accused should be informed of the seriousness of the charge and of the possible consequences of conviction. He should also be informed in appropriate cases that he is entitled to apply to the legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in unfair trial in which there may well be a complete failure of justice.

13. In Joseph Kiema Philip v Republic (2019) eKLR, the Court stated this:-……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced.”

14. In the same case, the court went on to emphasise that the right should be explained to the accused promptly, the court said:-The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings…”

15. In the instant case, from a look at the court record, it is clear that at no time during the trial, did the court inform the appellant of right to seek counsel of his choice. Failure to do so renders the trial a nullity. The proceedings are therefore set aside including the sentence.

16. In addition to the above, the appellant faced five counts. However, in the judgment, the court only dealt with only Count 1 threatening to Joyvet. No mention was made of Counts 2 – 4. The complainant in those counts testified and the charges were never withdrawn or dismissed by the court. As matters stand, Count 2 – 4 are in abeyance. The trial court obviously erred in not dealing with the said counts and I find that his finding on only Count 1 renders the trial a mistrial.

17. The next question is what should the court do?

18. The case of Ahamad Sumar v Republic (1964) KLR laid down guidelines on when the court may order a retrial. The court saidIt is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.

19. In the instant case, the prosecution witnesses testified before the trial court and in my view the potentially admissible evidence is likely to result in a conviction.

20. The Appellant was sentenced to 10 years imprisonment on 13/10/2022. So far he has served one year which is not a substantial part of the sentence. The appellant faced four serious offences of threatening to kill and this court is of the view that the matter should go to full trial so that if proved, the perpetrator should face the full force of the law.

21. Lastly, the witnesses are from the same family and I believe that they will not be difficult to trace. For the above reasons I find that this case is suitable for a retrial. I hereby order a retrial.

22. The appellant be released to Migori Police Station forthwith to be produced before the Senior Principal Magistrate’s court for plea on 18/12/2023 for fresh trial which must be expedited. It is so ordered.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 14TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn presence of; -Ms. Kaino for the stateAppellant AbsentMs. Emma/ Phelix –Court Assistant