Fred Muliro v Republic [2004] KEHC 887 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO.44 OF 2003 (Being an appeal from Original Criminal Conviction and sentence in Criminal Case No.576 of 2003 of the Chief Magistrate's Court at Mombasa - J.S. Mushelle, SPM)

FRED MULIRO ………………………………..……………………… APPELLANT

VERSUS

REPUBLIC …………………………………………………………… RESPONDENT

J U D G E M E N T

The appellant was charged under S.296 (1) Penal Code in that on 21-2-2002 at Shimanzi Area, Mombasa, with others not before court they robbed one Polycarp Ondogo of something, not so clear from the handwritten charge sheet, worth Sh.5,545/- and before or after such robbery threatened to use actual violence on the said Polycarp. From the evidence the things robbed were cigarettes which Polycarp was selling and four men including the appellant confronted and robbed him of the same at about 10. 30 a.m. He got 5 years imprisonment plus 2 strokes and to remain under police supervision for 5 years on release. The sentence was pronounced on 14-2-2003.

On 25/2/2003 a petition with four (4) grounds were filed here. It claimed that the evidence of 2 witnesses (PW.1, 2) was not sufficient to found a conviction. That that evidence was full of discrepancies and the case was poorly investigated.

The learned State Counsel conceded the appeal on the basis that on 28. 5.2000 Cpl. Mwamburi was the public prosecutor in the lower court and so the trial was a nullity (See S. 85 (2) Criminal Procedure Code). On further research and on the authority of this court’s judgement in Mombasa Cr.A. No. 577 and 582 of 2000 [Kale Ahmed Kale, Hamisi Abdul vs. R (unreported] the appeal ought not have been conceded because Cpl. Mwamburi did not conduct the prosecution case by, for instance, calling witnesses. On 28-5-2002 he had:

“………… merely appeared on the mention date and had the trial adjourned …….” )pp.6)

The court in the above Kale case had concluded that such a routine act could not amount to prosecuting the case which involves e.g. taking a plea, examining witnesses, making submissions to be followed by a ruling of the court etc. This is what happened in the Kale case where Cpls. Kamotho and Gitau did prosecute and the proceedings were found to be a nullity as per S. 85(2) Criminal Procedure Code [see Roy Elirema & Anr. Vs. R. CR. A. no.67/2002 (C.A.] However be that as it may, the learned State Counsel asked this court to order a retrial. He told the court that evidence available was such that a conviction was probable following a retrial. That the offence took place at 10. 30 a.m. and the appellant was arrested near the scene. And that witnesses would avail. That the appellant had served about a year and eleven months only of his 5 year term. In fact at some stage the State wanted to serve a notice to alter the finding and enhance sentence. This was abandoned on the basis that at all times the appellant was charged under S.296 (1) Penal Code.

The appellant who seemed not to follow what the process entailed even after he confirmed that he had followed it as explained by the court, ended by saying that he had availed his submissions about the appeal and he wanted the court to have mercy on him.

Having gone over all the above the offence herein was serious and it took place in broad day-light. Witnesses would avail and the appellant who at some stage seemed not opposed to a retrial, would not be prejudiced. That the retrial would not be an opportunity for the prosecution to fill gaps in its case since the evidence available was such that it would lead to a conviction. Indeed the court was left with a view that a charge under S.296 (2) would have been the proper one.

It is however considered that with the corrected position taking in regard the Kale case, this appeal proceeded as if it was not conceded at all.

And having gone over the lower court record the grounds of appeal and submission the lower court sentence is set aside and substituted with one to the extent of the prison term so far served. Save for that the appeal is dismissed.

Judgement delivered on 15th November 2004.

J.W. MWERA

JUDGE