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The Court of Appeal held that failure to inform the accused of the right to recall witnesses after a substituted charge made the later proceedings a nullity.
Non-compliance with section 234(2) of the Criminal Procedure Act after substitution of the charge on 16 September 2021 rendered all subsequent proceedings and judgment a nullity; appeal struck out and retrial ordered from substitution stage with compliance to procedural requirements.
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The Court of Appeal quashed Balole Simba’s conviction after finding a fatal procedural defect in charge substitution and improper admission of a cautioned statement.
The charge was not defective as the relevant section was in force and particulars were clear; failure to recall witnesses after charge substitution was not prejudicial as only the date changed and no injustice occurred; evidence of a witness not affirmed was expunged but did not affect the conviction; the prosecution proved the case beyond reasonable doubt based on credible identification evidence from PW1.
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The prosecution failed to prove the offences beyond reasonable doubt due to material inconsistencies in the victim's evidence and the inadmissibility of the cautioned statement, leaving no credible evidence to sustain the conviction.
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The High Court allowed a criminal appeal, holding that failure to recall key witnesses after repeated charge substitution vitiated the trial and quashed the conviction.
The failure to recall key prosecution witnesses after the charge was substituted, especially where the new charge enhanced the amount and added a count, occasioned injustice to the appellant and vitiated the proceedings. The proceedings were nullified and all orders set aside.
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Failure to take a plea to the substituted charge is a fundamental procedural irregularity that renders the entire trial a nullity and is not curable under section 388(1) of the Criminal Procedure Act.
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The trial was incurably vitiated by failure to comply with mandatory procedures for substituted charges and by admitting a retracted cautioned statement without inquiry, resulting in an unsafe conviction.
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The High Court struck out a criminal appeal as out of time, but also held the trial was a nullity because the substituted charge was not properly read and pleaded to.
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