Mulatya Munyoki v Republic [2018] KEHC 6298 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL APPEAL NO. 43 OF 2016

MULATYA MUNYOKI .......................................... APPELLANT

VERSUS

REPUBLIC ........................................................... RESPONDENT

(Being an Appeal from the Original Order in Kitui Chief Magistrate’s Court Criminal Case No. 708 of 2012 by M. Murage C M on 25/07/16)

J U D G M E N T

1. Mulatya Munyoki,the Appellant, faces a charge of Robbery with Violencecontrary to Section 296(2)of the Penal Codeand in the alternative, Handling Stolen Propertycontrary to Section 322(1)as read with Sub-section (2)of the Penal Code.

2. He denied the charge whereafter the matter proceeded to trial as provided by Section 207of the Criminal Procedure Code.He was tried and convicted. He appealed and a retrial was ordered. Subsequently he was arraigned before Court for plea on the 28thday of December, 2012.

3. On the 11thday of July, 2016,the State sought to proceed under Section 34of the Evidence Actas the exhibits that were produced in previous proceedings were disposed of. The application by the State was opposed by the Appellant. The learned Magistrate considered the application and allowed it.

4. Aggrieved by the decision of the Court, the Appellant appealed on the ground that the order of the Court was in violation of his rights and justice would not be done if the decision of the Lower Court were left to stand.

5. In his written submissions the Appellant stated that he was arrested in 2005. A retrial was ordered in 2012and until 2015the Prosecution always sought adjournment following the excuse of exhibits that were missing.

6. In response, the State through learned Counsel Mr. Mambaopposed the Appeal. He submitted that a notice was given establishing that the exhibits were destroyed on the 26th December, 2010therefore Section 34(1)(d)of the Evidence Actwas applicable.

7. As an Appellate Court I am duty bound to reconsider what transpired in the Lower Court and come up with my own conclusion considering what is on record of the Lower Court.

8. Section 34of the Evidence Actprovides thus:

“(1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances—

(a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable,and where, in the case of a subsequent proceeding—

(b) the proceeding is between the same parties or their representatives in interest; and

(c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(d) the questions in issue were substantially the same in the first as in the second proceeding.

(2) For the purposes of this section—

(a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and

(b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused.”

9. This is a matter where witnesses called by the Prosecution in a Criminal Case testified against an Accused, the Appellant herein. They identified exhibits that were subsequently adduced in evidence by the Prosecution in Judicial Proceedings where the Appellant was found guilty and convicted. It has been demonstrated that some of the exhibits were disposed off following the Court order. The retrial in the instant matter was ordered after the trial was declared a nullity following non-compliance with Section 200of the Criminal Procedure Codeby the trial Magistrate.

10. It is alleged by the Appellant that invocation of Section 34of the Evidence Actin the circumstances is a violation of his rights. The law provides for admissibility of evidence adduced by a witness in proceedings previously in subsequent proceedings or at a later stage in circumstances set out in Section 34of the Evidence Act. The facts in issue to be proved is by exhibits that were disposed off following a Court order. Witnesses who identified them were cross-examined by the Appellant and will be availed for further cross examination. Production of part of evidence adduced which will be subjected to thorough cross examination will not be prejudicial to the Appellant; in the circumstance his rights shall not be deemed to have been violated.

11. In the result, the Appeal lacks merit and is dismissed in its entirety.

12. Therefore I do direct that this file be placed before the Hon. M. MurageChief Magistrate for further hearing and disposal on a priority basis.

13. It is so ordered.

Dated, Signed and Deliveredat Kitui this 24thday of May,2018.

L. N. MUTENDE

JUDGE