Julius Muriira & 3 others v Republic [2008] KECA 82 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NYERI

Criminal Appeal 194 of 2006

JULIUS MURIIRA  ………………………………………..……. 1ST APPELLANT

PAUL MWITI  MURIUNGI…………………………………..…. 2ND APPELLANT

SILAS GITONGA MURIUNGI ……………….………..……… 3RD APPELLANT

GERVASIO GIKUNDI ………………………………………… 4TH APPELLANT

AND

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

(Appeal from a conviction and sentence of the High Court of Kenya at

Meru (Sitati, J) dated 25th July, 2006

In

H. C. Cr. C. No. 43 of 2002)

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JUDGMENT OF THE COURT

The first, second, third and fourth appellants in this appeal namely Julius Muriira, Paul Mwiti Muriungi, Silas Gitonga Muriungi and Gervasio Gikundi respectively were arraigned in the superior court at Nyeri on a charge of murder contrary to section 203 as read with section 204 of the Penal Code.  The particulars of the charge were that:-

“On the 22nd day of September, 2001, at Thuti village, Thangatha location in Meru North District within Eastern Province, jointly murdered JOSHUA KANGERIA BUNDI.”

They each pleaded not guilty to the charge and the hearing of the case proceeded before the superior court (Sitati, J) purportedly with the aid of assessors.  After the conclusion of hearing the prosecution case and the defence case, the learned Judge summed up the case to three assessors who on the same date gave a unanimous opinion which was that the appellant was guilty.  In her judgment dated and delivered on 25th July, 2006 the learned Judge  found each of the  four appellants guilty as charged,  convicted each of them and sentenced each to suffer death as provided by law.  The appellants were not satisfied with their conviction and sentence and filed, through Elijah K. Ogoti and Company Advocates, “Grounds of Appeal” dated 30th August 2007 challenging the convictions entered and sentences awarded by the learned Judge of the superior court.  Later, on 12th May, 2008, each of them filed Supplementary Memorandum of Appeal through the same firm of advocates.  Contents of the supplementary memoranda were the same.  Because of what will be apparent later in this judgment, we reproduce the fifth and the sixth grounds of appeal  herebelow.  They read as follows:-

“5. The Honourable Judge erred in law by passing a death sentence  in respect of the 3rd accused  (Silas Gitonga) who at the time of the offence was under age (minor).

6. The learned Judge erred in law in not finding that no assessors were selected and  their verdict was irregular.”

At the hearing of the appeal, Mr. Ogoti, the learned counsel for the  appellants addressed us at length on the  above grounds of appeal and on other grounds.  Mr. Orinda, the learned Principal State Counsel, conceded the appeal mainly on the above two grounds of appeal.  We have considered the submissions, the record, and the law pertaining to the above two grounds.  The record shows that the third appellant, Silas Gitonga was sentenced to death for the offence which took place on 22nd September, 2001.  He was escorted to Dr. Nthanga, the then  Medical Officer in charge, Miathene S.O Hospital on 29th September, 2001 for age assessment.  His age at that time was assessed to be 16 years.  Dr. Isaac Mwangi Macharia (PW5) gave evidence and produced the P3 in respect of Gitonga’s examination for age assessment as Exbt. 3. In evidence Dr. Macharia stated:-

“This form MFI 3 is in respect of Silas Gitonga who was taken for examination on 29th September 2001  under escort of Cpl. Wangila.  He was found to be 16 years  old and mentally normal.”

There was thus sufficient evidence to  show that the third appellant was below the age of 18.  The law as it was even  before the  Children Act was enacted and  as it is now is that any person below the age of 18 years cannot be sentenced to death.  Because of the other aspects of  this appeal, we would take no action on this glaring error of the court at this stage.  We hope that High Court Judges will avoid such elementary errors.

The next ground which we deem fit to deal with, as we have indicated above, is the way the superior court handled  the case  as regards the requirement for  selection of assessors.  Mr. Ogoti, the learned counsel for the appellants,  submits and not  without justification, that  there was no evidence on record to show that the learned Judge of the superior court actually selected  the assessors.  Mr. Orinda says there was selection of the assessors as there were four people in court and the learned Judge heard  the case with the help of three of the four meaning that she must have  carried out selection of some  sort although that is not apparent from the record.

Our perusal of the record shows that plea was taken on 30th July, 2002, when the first three appellants pleaded not guilty to the charge.  Thereafter it came  up for mention on several occasions  until 23rd June, 2004 when it  was fixed for hearing on 26th October, 2004.  Throughout all that period of mentions no mention was made of the assessors  let alone selecting them.  On 26th October, 2004 when the  case came up for hearing, the record shows that Mr. Muteti, the learned State Counsel, addressed the court as follows:-

“MR. MUTETI

I have  received word on behalf of Mr. Muriuki that he will not be able to attend court today because he is sick.  The case is also fixed for hearing  tomorrow 27th October, 2004.  The accused  person has not been produced in court today and there is no explanation.  There are some four assessors in court this morning as there has been no selection.  I have  three witnesses present in court.”

The learned Judge’s response to  the State Counsel’s  submission reproduced  above was as follows:-

“ORDER

1. Case SO for hearing on 27. 10. 2004

2. Production order to issue  for the accused.

3. OCS Mikinduri to personally appear in court on 27. 10. 2004 together with original file exhibits and remaining  witnesses on 27. 10. 2004.

4. The following  three assessors  Erastus Maina, Gideon M. Ikiara and Isaya Mungathia to be paid  their allowances  for today. ---”

The above is  what Mr. Orinda  refers to  as constituting selection of assessors and he takes that  view because although the State counsel had said there were four assessors, the learned Judge  ended up naming three of those  four  present and directing that they be paid their allowances on that day which was a hearing date.  We do not  with respect agree.  There is nothing to show that the learned Judge made any effort to  find  out  from the four  persons she was told were present  for selection of assessors, in what way they were suitable to be appointed assessors.  There is no evidence on record to show that  any of the  four was asked  about his age, his  profession, whether  he had known any of  the appellants before; whether he would serve as an assessor, whether he had in the near past served as an assessor and such like questions that  would have led the court into ascertaining the suitability or otherwise  of the three to  serve  as assessors  so as to ensure that persons exempted  under the now repealed  section 266 of the  Criminal Procedure Code  were not  selected as assessors.  In any event, it was not  proper in our view  to mention  the  three to serve as assessors  in the absence of the defence counsel, Mr. Muriuki, who was not  in court on that date according to the  submissions of Mr. Muteti and even  worse, in the absence of the accused persons who were also not in court on that date.  We are not persuaded that the  casual manner in which the  learned Judge of the superior  court stated that the three named assessors  needed be paid their allowances  amounted in law to selection of assessors.  As the provision for trial by assessors  no longer exists  in law  by dint of the  repeal by the Criminal Procedure Act vide Act No. 7  of 2007, we need not set out  the procedure of  selecting assessors in this judgment  save to state  that as the case proceeded  at a time when  trials for murder charges  before the superior court were done with the assistance of assessors, the  trial in respect  of the  case resulting  in these four appeals having proceeded without  proper or any selecting of assessors was not in our view valid.

Further and even more  important, although the  learned Judge did not record  presence of assessors and the appearance before her on the dates the case was heard, as she should have done, except on one occasion, nonetheless, she indicated  their presence whenever the hearing was adjourned.  Going by that, it is apparent  that on 19th January, 2005, when PW5, Dr. Isaac Mwangi Macharia, the last  prosecution witness was heard, the prosecution closed their case and  counsel  on either side made their submissions under section 306 (2) of the Criminal procedure Code,  only two assessors were present.  The record shows that at the end of the submissions the learned Judge  recorded as follows:-

“ORDER

1. Ruling on 24. 2.05

2. The two assessors present namely Isaya Mungathia and Gideon M’Ikiara to be paid their allowances for today.

3. Accused RIC”

Thus, it is apparent that the hearing of the case which started with three assessors proceeded on 19th January, 2005 with two assessors only.  The learned  Judge of the superior court did not record the   reasons for dispensing with the presence of the third assessor Erastus Marica.  She apparently proceeded  under the then section 298 (1)  of the Criminal Procedure Code.  Be that as it may, a ruling was delivered by the learned Judge on 24th February, 2005.  On 6th December, 2005 the hearing resumed, and each appellant  gave  unsown statement.  On that day, only two assessors attended court.  The order by the learned Judge reads:-

“ORDER

1. Submissions on 7. 2.2006

2. Assessors present (two of them to be paid their allowances of today. (sic)

3. Accused RIC.”

However, on 7th February, 2006, the record  shows that all the three assessors were present  in court. Mr. Muteti, said  so and the learned Judge also recorded the same.  The matter was  coming up for submissions but the same was adjourned to 14th February, 2006.  On that day the Coram was recorded as follows:

“Coram

R.N. Sitati Lady –J.

Mr. Muteti for the Republic

Mr. Muriuki for the Accused.

CC Kimathi

Assessors

1. Gideon Mworia Ikiara

2. Isaya Mungathia Muronga

3. Erastus Moija M’Itheya.”

On that day the two learned counsel made their submissions and  summing up was reserved to 29th March 2006, but  it was adjourned from time to time until 29th May, 2006 when it  was done and immediately thereafter, all the assessors returned a  unanimous opinion of  guilty.  That was delivered on their behalf by Gideon Mworia Ikiara.

It is clear  from above that one assessor Erastus Monja M’Itheya who was absent  on 19th May, 2005 and so did not hear the evidence of the Doctor (PW5) and did not also hear submissions by the learned counsel under section 306 (2) of the Criminal Procedure Code and was not  there when the court  made ruling under that provision of the Criminal Procedure Code, was nonetheless  allowed  back to the case, and  participated in the proceedings  ending up  giving his opinion on whether or not the appellants were guilty of the offence.  This was not  proper in law.  This Court has made its stand on that aspect  very clearly on several occasions, that once an assessor absents himself and the court decides to  proceed with the two  remaining assessors as  happened in this case, the court  cannot  allow that  assessor to  come back  into the case  and give his opinion on the guilt  or otherwise  of the accused.  We  think this  principle is based  on common sense  that an assessor who has not  heard some of the witnesses  or who has missed out on some  part or parts of  the proceedings   cannot be in a proper position to give an  informed opinion  on the entire case.  In the case of Abdullahi Abdalla Mukulu v. Republic, Criminal  Appeal No. 51 of 2003, this Court stated as follows:-

“The second aspect we find disturbing is that the record shows that on 25th September, 2002 , the third assessor was absent and the Court dropped him and ordered the trial to continue with two assessors present, thus excluding the third assessor. ………………………………….

The trial then continued with two assessors and the record shows that submissions were made by the learned defence counsel as well as by the learned Principal State Counsel in the presence of the two assessors.  However on 13th November, 2002 the record shows that the hearing proceeded with three assessors present and indeed on 20th November, 2002 all the three  assessors including the one who had been dropped gave their opinions to the Court.  In our mind, this was not proper.  Once one assessor had been dropped, he could not be allowed back to take part in the trial.  This Court made that position clear in the case of JOSEPH MWAI KUNGU VS. REPUBLIC Criminal Appeal No. 68 of 1994 at Nakuru where the Court stated as follows:-

“Before every trial opens in the High Court, the judge must select three assessors and at the beginning of every such trial, the assessors must be three.  But if in the course of the trial, as it does happen that one assessor might, for some good cause,  be unable to attend, he may absent himself as Robert Ombachi did in this case on 22nd June, 1992.  If that happens and the judge decides to proceed with the remaining two assessors, that as we said earlier, is permitted under section 298 (1) of the Code.  However, once the judge has taken  the decision to proceed with two remaining assessors, the one who absented himself , whatsoever may be his or her reason for being absent, must not be allowed back to the trial.  The same section 298 (1) requires that an assessor must attend throughout the trial.”

We need  not say more.  From the above, it will be clear that the trial before the superior court was a nullity.  Mr. Orinda  seeks a retrial and says the  witnesses  would still be available .  Mr. Ogoti opposes retrial submitting that the appellants have suffered as they have been in incarceration for seven years.  We have anxiously considered this aspect of the matter and the submissions before us.  We have  considered the evidence that is  on the record, the period the appellants have been in police and prison custody.  We have also  considered the law.  In the case of Mwangi vs. R (1983) KLR 522.  this  Court stated:-

“A retrial should not be ordered unless the appellate Court is of the opinion that  on proper consideration of the admissible, or potentially admissible evidence, a  conviction might result. BRAGANZA V. R. (1957) CA 152 (CA), PYARDA BASSEN V. REPUBLIC (1960) EA 54. ”

In our view, a retrial would meet the ends of justice in this matter.  We allow the appeals, set aside the sentences of death in each case and order that Criminal Case No 43 of 2002 be heard afresh by a judge of the superior court other than Sitati, J.  The hearing is to proceed under the Criminal Procedure Code as amended by Act 7 of 2007 i.e. the  retrial to proceed  without the aid of assessors.  Judgment accordingly.

Dated and delivered at Nyeri this 31st day of October, 2008.

R.S.C. OMOLO

…………………………

JUDGE OF APPEAL

E.M. GITHINJI

……………………….

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

…………………………………

JUDGE OF APPEAL

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

DEPUTY REGISTRAR.