Collins Ogonyo Onditi & George Omondi Mhenda v Director of Public Prosecutions [2019] KEHC 5753 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL PETITION NO. 97 & 98 OF 2014

COLLINS OGONYO ONDITI................................................1ST PETITIONER

GEORGE OMONDI MHENDA............................................2ND PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS...................RESPONDENT

JUDGMENT

1. The Constitutional Petitions Nos. 97 and 98, both of 2014 (now  consolidated) arise from proceedings that commenced from the  subordinate court in the first instance and went all the way to the court  of Appeal.

2. Before the subordinate court, the Petitioners jointly with another were  charged with three counts of robbery with violence contrary to section  296 (2) of the Penal Code vide Mombasa Criminal Case No 2805 of  2008.

“On the 21st day of March 2008 at Nyali estate in Mombasa District  within Coast Province, the  jointly with others not before court while armed with dangerous weapons namely pistols robbed     HASSAN  YUNUS MADORBE of a Somali sword, National identity card and a bunch of keys all valued at Ksh 500/= and at or immediately before or immediately after the time of such robbed threatened to use actual violence to the said  HASSAN YUNUS MADOBE”.

“On 21st day of March 2008 at Nyali  estate in Mombasa District within coast Province, jointly with    others not before curt while armed with  dangerous weapons namely pistols robbed  HASSAN UNUS MAKOBE of a Somali sword, National  identify card and a bunch of  keys valued  at Ksh 500 and at or immediately before or immediately after the time of such robbery  threatened to use  actual violence to the aid HASSAN YUNUS MADOBE”.

On the 3rd day of September  2008 along Nkrumah Road in Mombasa District within Coast Province, otherwise than in the  course of stealing  dishonestly received Nokia mobile phone model N 95 serial number 354 835 013 971 792 knowing or having reason to believe it  to be a stolen property.

3. The trial before the subordinate court proceeded for hearing  culminating into a conviction whereby the petitioners, upon being    found guilty were sentenced to death on 28th January,2010.

4. The petitioners then appealed to the High court against the conviction  and sentence  vide High Court Criminal Appeal No. 43 of 2010 citing  the following grounds;

(a) That the confession was inadmissible as it was made to a  police officer who was below the rank of an inspector  as  provided for by the law.

(b) That there was non-disclosure of material evidence by the Respondent during pre-trial.

(c) That the identification parade was irregular as the incident was reported a Nyali police station while the parade was conducted a Central police station outside the  jurisdiction within which the offence was committed.

(d) That there was misdirection by the trial court in  admission of  documents  from Safaricom;

(e) That the  proceedings in the trial court were a nullity as the court allowed the testimony of Pw3 who was present  when Pw2  testified.

(f) That the  respondent failed to charge all the persons who were found in possession of the stolen phones;

(g) That  the death sentence was unlawful.

5. The  High Court  rendered itself on the proceedings of the subordinate  court and upheld the  conviction and sentence  by the  trial magistrate  and dismissed  the appeal in its entirety in a  judgment  delivered on  18th  September,2018

6 Again, the Petitioners still dissatisfied with the judgment of the High  court moved to the court of Appeal vide Criminal Appeal No. 28 of 2013  and cited the following   grounds;

(1)That the leaned hon. Trial magistrate erred in law and fact in convicting me in reliance of visual identification evidence tendered by Pw1,Pw2, Pw3 and Pw4 without proper fining the same was flaqwed when given that;

(i) the attack occurred at night and the source of light which illuminate that area was not brought  within measurable margins as to be safely depended for fear and error free identification.

(ii) The attackers were  strangers, the attack was sudden and brief and the shear presence of pistol must have case fear, panic and threat which must have anticipated their ability for proper identification.

(iii) They never gave descriptions in their initial report  police therefore mounting of and identification parade   could obviously serve no proper purpose.

(2)That  the learned hon. trial magistrate erred in law and  fact in connecting my arrest with the matter in question  without proper finding  the same had no link when given other facts that;

(i) I was arrested with noting in criminative to link me   with this case

(ii) the person who led police to my arrest was left out   of the prosecution case.

(3) that the learned hon. Trial magistrate erred I law and  fact in failing to see that the prosecution case was not  sufficiently investigated and even the police  released  one  of the mot essential suspect of who they knew had links with  a phone which is alleged to be one of the stolen items.

(4) that the learned hon. Trial magistrate erred in law and  fact when he failed to consider that the charge sheets as  drafted were fatal to consider and incurably defective for the evidence in record goes against the information  tendered in court in its support thus contravening section  134 of the CPC prosecution case was governed by mas contradictions and more particularly concerning the role  played by the suspect at the scene of crime.

(5) That the learned hon. Trial magistrate erred in law and  fact by convicting me  without seeing that section 109 of the  evidence act was not  adhered to and also the section  used  by the trial court to convict me was wrong.

(6) That  the learned hon. Trial magistrate errod in law and  fact inadequately rejecting my defence statement without  giving any cogent reason.

7. The appeal was heard and dismissed in a judgment rendered on 5th  June, 2014 whereby the sentence of the trial court was upheld.

8. The 1st Petitioner, COLLINS OGONYO ONDITI, file a Miscellaneous  Criminal applicant No. 97 of 2014 while the 2nd petitioner, GEORGE  OMONDI MIHENDA filed miscellaneous Criminal Application No. 98  of 2014. The two Miscellaneous Criminal Applications were  consolidated on 10th  November, 2014.

9. In their  petitions , brought under the provisions of Articles 21 (1) and  (5), Article 22(1) and (3); Article 23(1) and (3); Article 25, Article 26 (1)  and (2); Article 27, 28,47,48,50 (1), (2) (4) and (6); Article 165(3) and  Article 258 (1) of the constitution, 2010, the  Petitioners have raised  the  following grounds;

(a) That the confession was inadmissible as it was made   to a  police officer who was below the rank of an inspector as provided for by the law.

(b) That there was non-disclosure of material evidence by the Respondent during pre-trial.

(c) That the identification parade was irregular as the incident was reported at Nyali police station while the    parade was conducted at Central police station outside the jurisdiction within which the offence was committed.

(d) That there was misdirection by the trial court in admission of documents from Safaricom.

(e) That the proceedings in the trial court were a nullity as the court allowed the testimony of Pw3 who was present when Pw2  testified.

(f) That the respondent failed to charge all the persons who were found in possession of the stolen phones.

(g) That the death sentence was unlawful.

10. In these grounds, the petitioners have given an account from the   evidence before the trial court which they perceive as grave omissions  which were not dealt with by the trial court and the Appellate court in  the matter.

11. According to the Petitioners, their rights under Article 50 (2) (p) of the  Constitution 2010, were violated. The reason I had the grounds upon  which the petitioner appealed to the appellate courts was so as to  identify what was decided at the trial in both instances and whether the  issues they raised were dealt with lawfully. The conclusion of this will  help determine the parameters of applying Article 50(2) (p) and 6(a)  and (b) of the Constitution. Of worth noting  is that both petitioners  did not challenge their sentences in their respective   grounds of   petitions.

SUBMISSIONS BY PETITIONERS

12. The 1st petitioner submitted that his rights to fair trial were violated.  He stated that during trial, the trial magistrate did not give him  sufficient time to prepare for his defence as he was not supplied with   the necessary documentary exhibits within reasonable time, which  amounted to an ambush. This is the main point he gave emphasis to  in his submissions and cited several authorities in support of this.

13. The 2nd petitioner submitted that his rights were violated in that he  was given exhibits late and hence lacked adequate time to prepare for  his defence. He further claimed that his spirited mitigation was  ignored, hence the death sentence.

14. Both petitioners also asserted that the Honorable court has  jurisdiction to determine the matter.

15. The Respondent through the learned state counsel in their submissions  opposed the jurisdiction of the court and gave a reasonable argument  for the same. He argued that the matters that the petitioners have  relied on do not meet the standard threshold under Article 50(6) of  the Constitution, 2010.

16. He however, concedes that the matter be referred back to the  magistrate’s court, being the trial court in view of the Supreme Court  decision in the Muruatetu case, on the  interpretation of section  296(2) of the Penal code, which makes the death sentence as a penalty  hereof  mandatory. This has become discretionary by virtue of Article  50 (2) (p) of the Constitution of Kenya, 2010.

17. Article  50 (2) (p) of the Constitution,  2010 provides as follows;

“ Every accused person has the right to a fair trial which includes the right;-

(p) to the  benefit of the least severe of the prescribed punishments  for an offence, if the prescribed punishment for the offence has change between the time that the offence was committed and  the time of sentencing  and

18. Article 50(6) provides;

“ A person who is convicted of a criminal offence may petition the High court  for a new trial if ;-

(a) the person appears, if  any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not  appear within  the time allowed’ and ‘

(b) New and compelling evidence has become available”

19. With the concession by the learned state counsel to have the matter re- heard for Purposes of sentencing, by the trial court, owing to the  opinion of the Supreme Court in the case of FRANCIS KARIUKI  MURUATETU & ANOTHER VRS R (2017) e KLR I find no need to   labour on the issue of the contested sentencing.

20. The only issue for determination is whether this Honourable court has  jurisdiction to rehear and determine a criminal case whose appeal has  been heard and determined by the court of appeal or to re-hear the  trial and re-determine any  part, of it, any finding  of fact or finding of  law, final decision, its 1st appeal, and 2nd appeal in its  capacity as   constitutional court.

21. Under  Article 165(3) of the Constitution of Kenya, 2010, the High  court  is conferred unlimited  original  jurisdiction in civil and criminal  matters while Article 165 (6) it is conferred supervisory jurisdiction  upon the subordinate courts, over any person, body  or authority  exercising judicial  or  quasi-judicial function but not over  superior  courts.

22. The Judicature Act expands this jurisdiction and enables it to assume  authority as the court in the course on certain specified matters.

23. Under Article 165 (5) of the Constitution, the power of the High court   is limited only to prevent it from diminishing the role of specialized  bodies or Tribunals.

24. At Article  50 (6) (a) and (b), the constitution gives the High court   special jurisdiction whereby it has power to entertain a matter  adjudicated upon by the superior court, the High court itself and the  subordinate court. Under this Article, the court has jurisdiction to  entertain a petition under the following circumstances; where

(a) a person convicted can petition for a new trial if his appeal has been  dismissed by  the court of appeal;

(b) the person realizes that he ought  to  have appealed on a  certain matter which he now wishes the  court to determine, in  other word one  can change his mind and refuse to resign to fate and try a chance as in a lottery”

(c) new and compelling evidence has become available and  desires that this evidence be tested.

In all these circumstances, a Petitioner is required to place before the  court material that support any of the requirements outlined above.

25. In the  instant case , the Petitioners , complained  that they were denied  their rights to fair  trial or furnished  with documentary evidence  late  in the  day or not given adequate time to prepare their defence, indeed,  under Article 50 of the Constitution, these are constitutional rights that  an accused is meant to be accorded during his/her  trial. However, they needed to show that these are issues which did not feature or arise  in the various stages of court trial and were never addressed by the  courts, hence the dismissal of their appeals

26. At the subordinate court level, the courts are treated to hearing of  evidence and observation of witnesses and the accused person to be  able  to determine their demeanor. At the superior court level, the  court relies on the record from the trial court and have no benefit of  hearing or observing the demeanor of the parties before it; unless there  is an application for new or fresh evidence to be adduced. Therefore, a   complaint under Article 50 (2) (p) of the constitution is not meant  to aim at faulting the superior  court  but  rather  to bring out the fact  that  there was the original omission of facts which has caused a   miscarriage of justice.

27. The other point is for a party to point out that there was an over sight,  hence did not file an appeal or was under some disability that caused  the failure to file an appeal. Lastly, that the material in the possession  of the party at this stage was not available to him or her at the time of  trial, so that if considered, may affect the outcome of the case and address the course of justice.

28. The prayer that a party needs to seek is a new trial and no other. And  by so doing, this does not affect the sentence which the petitioner is  already serving.

29. I have read through the grounds set out by both petitioners, the record  of their trial before the lower court, their submissions before High  court and court of appeal the law and cited authorities. I find that the  content of their petition does not meet the standards set out under  Article 50 (6) to warrant a fresh trial.

30. However, since the learned state counsel conceded to a sentence  rehearing, I have considered the opinion of the Supreme Court on the  application of the discretion of a court under section 296 (2) of the  Penal Code and order that this matter be referred to the subordinate court to  hear the petitioners mitigation on a fresh and be guided in the   resentence in  view of the changed legal standards.

31. It is therefore ordered that the matter be placed before the Chief  Magistrate, Mombasa Law courts for directions in terms of the above  findings.

Judgment delivered, dated and signed the 2nd day of May, 2019.

LADY JUSTICE D. O. CHEPKWONY

In the presence of

N/s Ocholla, counsel for the state

Mr Mushelle counsel for the 1st Petitioner

M/s Mwanzia, counsel holding brief for  Mr Obura for 2nd Petitioner

C/clerk- Beja