Amos Gituma Kinyua v Republic [2007] KECA 215 (KLR)

IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 265 of 2003 AMOS GITUMA KINYUA ……………………………… APPELLANT

AND

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

(Appeal from a judgment of the High Court of Kenya at Meru (Juma & Mulwa, JJ) dated 11th July, 2002In

H. C. Cr. Appeal No. 89 of 2001)

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JUDGMENT OF THE COURT

Mr. Orinda, learned Principal State Counsel, concedes that the trial of the appellant in this matter was a  nullity as the prosecution of  it was conducted by a person or persons who had no authority to do so.  We agree.

The appellant faced two counts of robbery with violence contrary to section 296(2) of the Penal Code and was tried before the Senior Resident Magistrate’s court in Nkubu.  It was alleged in count 1 of the charge sheet that the appellant, on the 24th of November 1999 at about 3. 00 a.m. at Nkubu market in Meru Central District within Eastern Province, jointly with others not before court being armed with a rifle and axes, robbed Johnson Kimathi of cash Kshs.40,800/- and at or immediately before or immediately after the time of such robbery,  threatened to use actual violence on the said Johnson Kimathi.  Count 2 of the charge  was on the same facts but the robbery was against Danston Mugambi from whom a sum of Khs.2500/- was stolen.

The trial commenced  before Hon. Nduku Njuki (SRM) on 12th January, 2000 after the appellant’s arrest on 10th January, 2000.  Appearing for  the prosecution at the time was Inspector of Police Makanya and the plea was taken.  After several adjournments, the hearing resumed on 24th August, 2000 when, again, IP Makanya, led the prosecution of the case and called the first witness, C.I. Francis Sang (PW1).  The matter was adjourned to 3rd October, 2000 when IP Makanya as prosecutor called the second witness, Johnson Kimathi Itonga (PW2)  after which it was again adjourned to 21st November, 2000.  On that day I.P Makanya led the third  witness, Danston Mugambi Githinji (PW3) in giving his evidence in chief and the witness was partly cross-examined by the  appellant before the hearing was adjourned to 11th January 2001.  PW3 then continued to be cross-examined by the appellant, but the prosecutor who took charge of the case on that date was Police Constable Nderitu.  P.C. Nderitu also called, and led, P.C. Fredrick Isinga (PW4) in evidence before closing the prosecution case.  The case was then adjourned for hearing the appellant in his defence.  At the resumed hearing on 25th January, 2001, the prosecution was represented by Corporal Kabogo as the defence case was presented and closed.

The manner of conducting the trial was neither raised before the trial court nor the superior court.  The appellant who drew up and filed the memorandum  of appeal  in person before this Court did not  raise  it either.  It is nevertheless an issue of law which goes  to the jurisdiction of the court and it is  the duty of this Court to deal with it.  At the hearing of the appeal, Mr. Kinyua Kiama, learned counsel  appointed by the court to assist the appellant, sought an adjournment to  consider the filing of a  supplementary memorandum of appeal raising that issue.  We found it unnecessary however to grant such adjournment in view of the  concession by the State, as stated at the beginning of this judgment.

The trial obviously took place long before the decision of this Court in Elirema & Another v. Republic [2003] KLR 537.  But the Elirema Case did not introduce  anything new in the law  nor have  subsequent cases which have followed that decision.  They merely restate the law  as it has always existed  in the Constitution  of Kenya section 77 (1), the Criminal Procedure Code sections 85, 85 (2), 86, 88 (1), 202 and the Police Act (Cap 84) Section 3 (2).  The combined effect of those provisions is that where an incompetent police officer prosecutes a Criminal Case before a magistrate’s court, the proceedings therein will be a nullity.  Both P.C. Nderitu and Cpl. Kabogo who conducted the prosecution’s case in this matter were not Public Prosecutors.  The trial in which they purported to be such prosecutors  was therefore a nullity, and we so declare.

What  is the consequence of that declaration?

Ordinarily an order for retrial should ensue.  In  general, a retrial will be ordered only when the original trial was illegal or defective.  It will not be  ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of  enabling the prosecution to fill up gaps in its evidence at the first trial.  Even where a conviction is vitiated by a mistake of the trial court of which the prosecution is not to blame, it does not necessarily  follow that a retrial should be ordered.  Each  case must depend on its particular facts and  circumstances and an order for retrial should only be made where the interests of  justice require it and should not be ordered where it is likely  to cause  injustice to  the accused person.  All those are familiar guidelines and we repeat them from  Fatehali Manji vs. Republic [1966] EA 343.  It was also stated by this Court in Mwangi vs. Republic [1983] EA 522 that:-

“We are aware that a retrial should not be ordered unless  the appellate Court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence, a conviction might result; Braganza vs. Republic [1957] EA 469, Pyarala Bassan v. Republic [1960] EA 854. ”

Mr. Orinda informed us that  the State was not pursuing any order for retrial for the reason that the evidence on record was materially deficient and a retrial would merely afford an opportunity to the prosecution to fill up the gaps left out in the original trial.  Once again, we respectfully agree with Mr. Orinda.

The prosecution called four witnesses to prove the two  counts laid against the appellant.  Only two of those witnesses, however, were  material.  They were the two complainants - Johnson Kimathi Itonga (PW2) in respect of the first count, and Danston Mugambi Githinji (PW3) in respect of the second count.  The other two witnesses were the police officer who conducted  an identification parade, C.I Francis Sang (PW1) and the officer who received the report of the alleged robbery, P.C. Frederick Isinga (PW4).

Itonga was a businessman in Nkubu town where he operated  a hotel known as Tea Room.  The hotel  building adjoins his  residential house.       At about 3. 00 a.m. on 24th November, 1999, he was sleeping in his house alone when he heard a knock on  his bedroom window.  He drew the curtain and saw about seven people;  all strangers, holding axes, rungus and a gun.  They ordered him to open the door and he did.  Three of those people then entered the house and demanded Kshs.250,000/-.  He  said he did not have such money but  showed them some Kshs.40,800/- he had kept under his sofa seat.  They took it and disappeared.  Itonga says there were lights on when all that was happening  but does not say how long it took.

Shortly before the robbers knocked on Itonga’s bedroom window, his worker in the hotel, Githinji (PW3) was sleeping in an upstairs room at the hotel.  He heard footsteps going up a ladder into the room and shortly he saw three people enter the room  armed with a panga, rungu and a small  axe.  They demanded  money and he gave them Kshs.2500/-.  They asked him  whether there was a telephone to make a report to the  police and he said there was none.  He was ordered  to lock his door and the robbers left.  He then heard them knocking at the window of his employer’s house shortly thereafter.

After the robbers left, Githinji went and opened the door for Itonga and both headed for  Nkubu police station to report the incident.  P.C. Isinga (PW4) says they informed him that they could identify one of the robbers if they saw him again.  According to them, the robber was  a very tall young and black person wearing a leather jacket with brown patches, black jeans trousers with patches on the knees, and black shoes.  All that  information, however, was not in the first report to the police and was not recorded in the occurrence book which was produced in court at the instance of the appellant.  Itonga added in  his evidence that the robber had a clean shaven head because he had a cut on the top of his head.  Githinji for his part said the  robber had a small scar on top of his left eye.

The appellant was  arrested in connection with other alleged offences in Meru town on 8th January, 2000, 45 days after this incident.  He is then alleged to have led the police  to several houses and to one  house at  Gakoromone which  an alleged landlord told the police was the appellant’s house.  The police recovered several items from the house including a jacket similar  to one worn by one  of the robbers at the time of the robbery.  It is not  clear where the police recovered the other items of  clothing alleged to have been  worn by the appellant at the time of the robbery which were  exhibited   and which the two witnesses purported to  identify him with.

An identification parade was arranged at Nkubu police station by C.I.  Francis Sang (PW1) but only Itonga was  invited to participate  in the exercise.  Githinji did not take part  although he said he did, and no other evidence confirmed that assertion.

Upon considering the evidence on record the trial court convicted the appellant on the  strength of the evidence of Itonga (PW2) and Githinji (PW3).  The superior court, on appeal, acquitted the appellant on count 2 as it was  conceded that the identification by  Githinji was merely dock identification and therefore evidentially worthless.  There was prosecution evidence  also that he was suspected by Itonga, his employer, as the person who told the robbers that he had money with him that night.  His evidence  was therefore of  doubtful credibility.  The  conviction on count 1 was upheld, but as is evident from the analysis  we have  attempted to relate above, the sole evidence of the complainant  was not free from reasonable doubts.  The sentiments expressed by Mr. Orinda are not therefore wholly  unfounded.

In the result, we  allow the appeal, quash the conviction and set aside the sentence of death imposed on him.  We order that the  appellant  be set at liberty unless  he is otherwise lawfully held.

Dated and delivered at Nyeri this 26th day of October, 2007.

S.E.O. BOSIRE

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JUDGE OF APPEAL

P.N. WAKI

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JUDGE OF APPEAL

J.W. ONYANGO OTIENO

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.