[2014] KEHC 4003 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 85 OF 2011

THOMAS MURIITHI NYAWIRA...................................................APPELLANT

versus

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

(arising from the judgment of Hon. L.M. Mbugua Principal

Magistrate Karatina in Criminal Case No. 602 of 2008)

JUDGMENT

1. The Appellant THOMAS MURIITHI NYAWIRA was charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code and an alternative charge of handling stolen property contrary to section 322(a) of the Penal code.

2. He pleaded not guilty to the two charges and was tried, convicted on the main charge and sentenced to death. Being aggrieved by the conviction and sentence he filed this appeal and raised four grounds of appeal.

3. When the appeal came up for hearing before us the appellant who was unrepresented filed an amended grounds of appeal together with written submissions which he relied upon while Miss Kitoto appeared for the state and opposed the appeal.

4. The appellant in his amended grounds of appeal raised the following grounds:

a. The learned Magistrate erred in law in convicting on a doubtful purported visual identification by recognition.

b. His rights to fair trial under Article 50(2) of the Constitution was violated.

SUBMISSIONS

5. It was submitted by the appellant that he was convicted on the basis of an identification by one single witness which was unsafe based on the testimony of P.W.1 that he was drunk at the said time. It was further submitted that the strength of the light remains doubtful and in support thereof the case of SAID BAKARI ALI & 2 OTHERS v R. CR. APPEAL NO. 900 OF 2003 CA was used.

6. It was submitted that the appellant was convicted on the basis of identification by recognition while there was no any initial report presented. P.W.1 it was submitted never gave any description to the police of the attackers and in support thereof the case of EZEKIEL AGWENYE AMOLLO v R CR APPEAL NO. 124 OF 1999 NAIROBI HIGH COURT was relied upon.

7. It was submitted that the manner he was arrested does not link him to the crime and that there were contradictions by prosecution witnesses on how he was arrested. Vital witnesses who would have shed light on his arrest were never called to testify.

8. It was submitted further that the charge was not proved beyond reasonable doubt. He further submitted that he was not accorded fair trial since he was arrested on 23rd October 2008 and sentenced on 26th May 2011 almost three years without any reason being given for the long delay. He was never supplied with the charge sheet and witnesses statements neither was his request to recall P.W. 1, 2 and 3 granted. He further submitted that the prosecution applied to withdraw the charges under section 87 which the trial magistrate rejected without giving reasons. It was therefore submitted that the appellant constitutional rights were violated.

9. On behalf of the prosecution Miss Kitoto submitted that P.W.1 was able to recognize the appellant whom he referred to as “Baite” and that he was attacked near electricity and was able to see the attackers properly and that the appellant was hooked to the offence through the phone he had taken to P.W2 to crack the security code.

10. Miss Kitoto conceded that the appellant had applied to recall witnesses which was not done and submitted that it was a lapse on the part of the trial magistrate. On the issue of statement she submitted that the accused was told to pay for them and he took long to make payment.

11. This being a first appeal we are under duty to reevaluate the evidence tendered before the trial court and to come to our own conclusion though taking into account the fact that we did not have the advantage of hearing and seeing witnesses.

12. The facts of this case were that P.W.1 Joseph Munyugi Wairimu left Pakoni bar having taken two beer at 9. 30 p.m. When he met the appellant together with one Dan and that he knew the appellant by the nick name “Baite” there were lights from electricity on both sides of the road when he was attacked and robbed of two phones and cash Ksh. 450/-. He struggled with his attackers for 30 minutes. He reported to the police station and the following day his two friends Erastus Maina and Kariuki identified his phone

13. P.W.2 Peter Muriithi Kinyua a phone technician testified that the appellant brought to him a motorola C168 to remove the security code and left when the said phone was identified by P.W.3 Erastus Maina Wambugu and that when the appellant came back for the phone he was told to produce the other phone so as not to be reported to the police to which he agreed only to run away.

14. When put on his defence the appellant offered to give no evidence opting to keep silent.

15. From the proceedings and submissions herein we have identified two issues for determination.

a. Whether the appellant's constitutional rights to fair trial were violated.

b. Whether the prosecution's case against the appellant was proved beyond any reasonable doubt.

16. Since the appellant has raised issue of breach of his fundamental constitutional right we are of the opinion that we ought to deal with this first. Article 50 of the Constitution of Kenya 2010 provides for right to fair hearing.

50(2)(b) provides right to be informed of the charge with sufficient details to answer it.

(c) to have adequate time and facilities to prepare a defence

(d) To have the trial begin and concluded without unreasonable delay.

17. From the court records it is clear that the appellant was arrested on 13th October 2008 and taken to court on 23rd October 2008 ten days later when the appellant pleaded not guilty. On 24th November 2008 the appellant appeared before Hon. Omido J.M when he applied for statements. He reapplied for statements again on 8th December 2008, 11th December 2008, 23rd December 2008, 6th January 2009 and by the time when his trial started on 19th December 2009 he had not been supplied with the said statements and was never supplied with the same throughout the trial.

18. We have also noted that when his trial commenced on 19th February 2009 when three (3) prosecution witnesses testified and the matter adjourned to 14th April 2009 and from that date the matter was adjourned fifty two times before the trial magistrate on 29th July 2010 declined to allow a further adjournment to the prosecution which lead to the prosecution applying to withdraw the case under section 87 (a) of the Criminal Procedure Code which the magistrate in our considered opinion rightly declined to allow on the basis that the appellant had been in custody for a period of two years.

19. Having so set up the history of this matter we find that the appellant's constitutional right to fair trial were violated in that he was not taken to court within the stipulated time under Article 49(1)(f), was never supplied with witness statement thereby breaching his rights under Article 50(2)(c) and did not have his trial begin and concluded without unreasonable delay further his rights to be informed of evidence of the prosecution as stated herein under Article 50(2)(f) were violated.

20. The appellant having been unrepresented and not withstanding the adversarial nature of our legal system, it was upon the court to safe guard the fundamental rights of the appellant and are therefore unable to agree with Miss Kitoto that it was a lapse on the part of the trial magistrate.

21. Not withstanding the fact that the appellant was properly connected to the offence based on the evidence on record we find that the violation of his rights were so fundamental therefore affected the trial rendering it a nullity.

22. We would therefore allow the appeal herein quash the conviction and set aside the evidence. The appellant should be set free forthwith unless otherwise lawfully held.

Dated, signed and delivered at Nyeri this 4th day of July 2014.

J. WAKIAGA

JUDGE

J. NGAAH

JUDGE