[2023] KEHC 26850 (KLR)

Wekesa v Republic (Criminal Appeal 102 of 2019) [2023] KEHC 26850 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26850 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 102 of 2019

AC Mrima, J

December 14, 2023

Between

David Wanyonyi Wekesa

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. C.M. Kesse (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. 473 of 2019 delivered on 1st October, 2019)

Judgment

1. David Wanyonyi Wekesa, the Appellant herein, was jointly charged alongside 4 other accused in Kitale Chief Magistrate’s Court Criminal Case No. 473 of 2019 with the offence of Stealing a Motor Vehicle contrary to Section 278A of the Penal Code, Cap. 63 of the Laws of Kenya.

2. The particulars of the offence were as follows: -On diverse dates between 30th January 2017 and 31st January 2019 at Kipsongoo area within Trans Nzoia County, jointly with others not before Court stole a motor vehicle Toyota Hiace Matatu registration number KAU xxxN valued at Kshs. 820,000/= the property of Jackson Omenda Were.

3. The Appellant was further jointly charged with one Michael Muchele Wafula with two more counts. They were malicious damage to property contrary to Section 339 of the Penal Codeand Handling stolen property contrary to Section 322(2) of the Penal Coderespectively.

4. All the accused, including the Appellant, denied committing the offences and they were tried. The Appellant was subsequently found guilty of all the three counts, was convicted as charged and sentenced to prison terms of 3 years, 1 year and 2 years respectively. That was on 1st October, 2019.

5. Aggrieved by the convictions and sentences, the Appellant preferred the instant appeal.

6. The Appellant was not represented by Counsel both at trial and on appeal. However, the other accused were represented by Counsel at the trial.

7. This being a first appeal, the duty of this Court is to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono v Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic[2004] KLR 81.

8. Having carefully considered the appeal, two preliminary issues arise that go to the heart of, and vitiates, the trial.

9. The first issue arose from the manner in which the trial was conducted on 23rd May 2019. On that day, the prosecution applied to amend the charge sheet with a view to rectify some dates. The application was allowed. The 5 accused were called to plead afresh to one of the charges. They denied it just as before.

10. The Prosecutor then informed the Court as follows: -I have spoken to Counsel who does not wish to cross examination [sic] on the rectification made. I have 2 witnesses.

11. The witnesses proceeded to testify.

12. Several matters arise therefrom. One, the record is silent on which count was amended and how. However, since all the 5 accused were called to plead afresh then it must have been the first count on the theft of the motor vehicle Two, the nature of the amendment is unknown as it is unclear whether an amended charge sheet was filed. None is on the record. Three, the position of the Appellant who was then not represented by Counsel was not sought and recorded. Four, the record is silent on whether the Appellant was informed of his rights to recall any of witnesses for cross-examination on the basis of the amended charge.

13. From the record, there seems to have been no compliance with the duty on the part of the trial Court to explain to the Appellant the available rights of an accused on amendment of charges and to record the response.

14. The second issue related to the charge sheet. As stated, the Appellant was charged with three counts. They were Stealing a motor vehicle, Malicious damage to property and Handling stolen property. The count on handling stolen property was a substantive one and not an alternative charge.

15. The charges appear to have been defective. Perhaps this Court ought to look at the issue in some detail.

16. Article 50(2)(b) and (n) of the Constitution provides as follows: -(2)Every accused person has the right to a fair trial, which includes the right-(b)to be presumed innocent until the contrary is proved;(n)not to be tried convicted for an act or omission that at the time it was committed or omitted was not –i)an offence in Kenya; orii)a crime under international law

17. Section 134 of the Criminal Procedure Code (hereinafter referred to as ‘the CPC’) 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.

18. Courts, in considering what constitutes a defective charge, have variously emphasized on the need to ensure that the accused is not prejudiced.

19. The then East Africa Court of Appeal in Yosefu and Another v Uganda (1960) E.A. 236 held as follows: -The charge was defective in that it did not allege an essential ingredient of the offence; i.e. that the skins came from animals etc, in contravention of the Act.

20. In Nyamai Musyoka v Republic(2014) eKLR, the Court of Appeal expressed itself as follows: -The test for whether a charge sheet is fatally defective is a substantive one.......If a defective charge is followed by a series of other procedural or substantive mistakes and which in particular affect the rights of the accused person, or the defect goes into the root of the charge distorting it in a way that the accused person cannot understand the charge, then the Court ought to be reluctant to apply Section 382 C.P.C. to cure the defect... (emphasis added).

21. And, in Sigilani v R (2004) 2 KLR 480, it was held that: -The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.

22. The Black's Law Dictionary defines 'defective' as follows: -Lacking in some particular which is essential to the completeness, legal sufficiency, or security of the object spoken of......

23. As rightfully settled by the Court of Appeal, the test in determining whether a charge is defective is a substantive approach as opposed to being formalistic.

24. Therefore, if on examination of a charge, a Court is satisfied that the offence is stated and the particulars rendered such that the accused can understand what he/she is facing before Court and in a manner that enables him/her to adequately prepare for a defence, then such a charge cannot be faulted on defectivity. That position will not change even if a wrong section of the law has been cited on the charge.

25. Applying the above to this case, the Appellant was charged with three counts. The particulars were given. This Court has reproduced the particulars on the charge of stealing. The particulars on the charge of handling stolen property were as follows: -On 31st January 2019 at Lukhuna area within Bungoma County, otherwise than in the course of stealing dishonestly received/retained motor vehicle Toyota Hiace Matatu registration number KAU 627N valued at Kshs. 820,000/= knowing or having reasons to believe it to be a stolen motor vehicle.

26. As stated above, the charge of handling stolen property was not in the alternative. Therefore, the Appellant was charged with both stealing and handling stole property in respect to the same motor vehicle. It is not possible for one to steal an item and at the same time to be handling the very item as a suspected stolen property. Ordinarily, the charge of handling suspected stolen property should be in the alternative to that of theft.

27. The above scenario, therefore, exposed the Appellant to a state of confusion. It was not reasonably possible for him to understand with precision the charges he faced. One wonders whether the Appellant was charged with the theft of the vehicle or handling suspected stolen vehicle. He could not be charged with both offences in the main unless the one on handling suspected stolen vehicle was an alternative one. How does one prepare the defence in such a case?

28. A charge sheet of such nature cannot be remedied under Section 382 of the Criminal Procedure Code. It is incurably defective, visits an injustice to an accused and results to miscarriage of justice.

29. The cumulative effect of the two issues denied the Appellant a fair hearing as envisaged under Article 50 of the Constitution. That trial cannot legally stand.

30. Having found as such, the Court now has to ascertain whether the Appellant be released or be retried.

31. The Court of Appeal in Samuel Wahini Ngugi v R (2012) eKLRrendered itself on the applicable legal principles on retrials as follows: -The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar v R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:It 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 personThat decision was echoed in the case of Lolimo Ekimat v R, Criminal Appeal No. 151 of 2004 (unreported) when this Court stated as follows:…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.

32. Returning to the matter at hand, the errors captured above were precipitated by both the Prosecution and the Court. Even if the Appellant is to be charged afresh still the instant charge sheet will be defective and won’t be accepted by the Court.

33. Given the error occasioned by the Prosecution, this is a matter in which an order for a retrial will be prejudicial to the Appellant.

Disposition: 34. Deriving from the above discussion, the following final orders do hereby issue: -a.The appeals on convictions and sentences are hereby allowed.b.The convictions are quashed and the sentences are hereby set-aside.c.The Appellant shall be forthwith set at liberty unless otherwise lawfully held.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -David Wanyonyi Wekesa, the Appellant in person.Miss Kagali, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.