HARON HABEKO ANYANGO v REPUBLIC [2011] KEHC 3432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL APPEAL NO. 178 OF 2009

BETWEEN

HARON HABEKO ANYANGO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Being an appeal from the decision of the Principal Magistrate Hon. J.M. Njoroge dated 8th October, 2009 at Kapsabet PMCRC No. 2772 of 2007)

JUDGMENT

Haron Hebeko Anyango, the appellant was charged with manslaughter contrary to section 202 as read with Section 205 of the Penal Code (Cap 63 Laws of Kenya). It was alleged that the appellant on the 15th August, 2007, at Silver Inn Estate in Nandi North District of the Rift Valley Province, unlawfully killed Boniface Amaremba. He pleaded not guilty. At the close of the prosecution case the Learned Principal Magistrate (J.M. Njoroge PM) found that a prima facie case had been made out against the appellant and placed him on his defence. After his defence, the Learned Principal Magistrate, in a considered  judgement dated 5th October, 2009, found the appellant guilty as charged and convicted him of the said offence. He was then sentenced to ten (10) years imprisonment. He was not satisfied with that decision and has appealed before this court against both a conviction and sentence.

In his grounds of appeal, the appellant raises the following issues:-Failure to rove the case beyond reasonable doubt and failure to cross examine the chief witness for the prosecution.

During the hearing of the appeal, the appellant appeared in person while the state was represented by Mr. Oluoch the Senior Deputy Prosecution Counsel. Learned counsel conceded the appeal on the ground that James Makanga (PW3) was not cross-examined at the trial. Counsel however sought a retrial arguing that the prosecution would mount a speedy trial. The appellant opposed a retrial on the basis that the matter had taken too long.

As the first appellate court, it is my duty to re-examine and re-evaluate the evidence upon which the appellant was convicted and reach my own independent conclusion bearing in mind that I neither saw nor heard the witnesses testify and should give allowance for that (see Okeno -Vs- Republic (1972) E.A.32)

The facts giving rise to the charge against the appellant were briefly as follows:

The deceased Boniface Amaremba, was on 15th July, 2007 at about 3. 00p.m at a bus stage in Kapsabet Town with James Makanga (PW3) when they were hired to go to the house of the accused to collect certain items. They found the accused in the company of a young girl. He allowed the pair to take the items and commenced their return journey. On their way, the accused attacked the deceased with a panga. The deceased fell down and PW3 went to report to Kapsabet Police Station. He was told to take the deceased to hospital and he hired a taxi for that purpose but before he took the deceased he was chased away by members of the public. The deceased’s was however later taken to Moi Teaching and Referral Hospital where he died.

PW3 was then stood down before being cross examined because exhibits which he was expected to identify were not in court. When the trial resumed PW3 was not recalled for cross examination. The evidence of Dr. Walter Nalyanya, who performed the post mortem on the body of the deceased was subsequently taken before the prosecution closed it’s case.

The appellant then gave an unsworn statement denying commission of the offence and contending that members of the public went to shelter from rain at his house and started taking his items from therein as they beat him.He was then taken to the police station where he was charged with an offence he was not involved in.

On the above facts, the Learned Principal Magistrate found that the offence of manslaughter had been proved against the appellant as required in law and convicted him as already stated. He then sentenced him to ten(10) years imprisonment.

I have re-evaluated and reconsidered the same evidence and note that the offence was committed at about 3. 00p.m. That was in broad day light. It was witnessed by PW3 who however was not cross examined.   There was therefore non-compliance with section 208 (2) and (3) of the Criminal Procedure Code. That omission would be ascribed to the court. I am not therefore surprised that the Learned Senior Deputy Prosecution Counsel conceded the appeal.

How about a retrial? I am assured that a retrial can be mounted with dispatch. Having considered the evidence of PW3, who was an eye witness, I have come to the conclusion that the prosecution presented credible evidence at the trial upon which a conviction would be founded.

The appellant’s trial took about two years to be concluded. I have also noted that he was, during his trial, admitted to bail. In these premises, I am of the view that the appellant would suffer no undue prejudice if a retrial is ordered. This appeal is therefore allowed.   The appellant’s conviction is quashed and the sentence of ten(10) years imprisonment imposed upon him set aside. The appellant shall be retried on the basis of the original charge by a different magistrate with competent jurisdiction. Pending the retrial, the appellant may be released on bond on such terms as the trial magistrate shall determine.

Orders accordingly.

DATED AND DELIVERED AT ELDORET

THIS 31ST DAY OF MARCH 2011.

F. AZANGALALA

JUDGE

Read in the presence of:

The appellant and Mr. Oluoch for the State.

F. AZANGALALA

JUDGE

31st  March, 2011