Paul Mulia Makau, Stephen Mwangi Gichimu Alias Kirimo & Joseph Mwaura Gichohi alias Kainera [2017] KEHC 2060 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEALS NOS 121, 132 AND 133 OF 2014 (CONSOLIDATED)

(Appeals from original Conviction and Sentence in Muranga CM Criminal Case No 532 of 2012 – B. Ochieng, Ag CM)

1. PAUL MULIA MAKAU

2. STEPHEN MWANGI GICHIMU alias KIRIMO

3. JOSEPH MWAURA GICHOHI aliasKAINERA..................APPELLANTS

VERSUS

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

J U D G M E N T

1. The three Appellants herein, Paul Mulia Makau (4th accused before the trial court), Stephen Mwangi Gichimu (1st accused) and Joseph Mwaura Gichohi (2nd accused) were each convicted after trial of two counts of robbery with violence contrary to section 296(2) of the Penal Code.  Their co-accused was acquitted.  Another co-accused had died in the course of proceedings; the charge sheet was amended in order to leave only the four surviving accused persons.

2. It was alleged in Count 1 in the charge sheet that in the night of 12th and 13th April 2012 at Gaturi Girls Secondary School in Murang’a County within the Republic of Kenya, jointly with others not before court, and while armed with dangerous weapons, namely pangas, rungus and metal bars, they robbed one Amos Gichana Gacheru of various computer central processing units, monitors and other items, all valued at KShs 1,200,000/00, and that at, or immediately before, or immediately after, the time of the robbery, they struck to death the said Amos Gichana Gacheru.

3. In Count 2 they were charged that on the same dates, time and place, and also with others not before court, they similarly robbed one Thomas Mwangi Mugo of a mobile phone make Nokia 1110 Serial Number 353658012596360 valued at KShs 3,000/00 and in the process used actual violence on the said complainant.

4. Each Appellant was sentenced to death as by law provided.  They have appealed against both conviction and sentence.

5. I have read the record of the trial court in order to appraise the evidence placed before that court and arrive at my own conclusions on the same.  This is my duty as the first appellate court.  I have borne in mind however that I neither saw nor heard the witnesses myself and have given due allowance for that fact.

6. A group of about six (6) men gained entry into Gaturi Girls Secondary School on the material night by cutting the chain-link fence surrounding it. They then attacked the two watchmen who were guarding the school, in the process injuring one of them fatally and causing actual bodily harm on the other whom they tied up with ropes and threw into a ditch.  They then broke into the computer room of the school and into other offices and stole the items listed in the first count.  They also robbed the surviving watchman of his mobile phone (Count 2).

7. The surviving watchman (PW3) did not identify any of the attackers.  He stated so in his testimony in court, this giving the lie to the testimony of a police officer who stated that he conducted an identification parade in which the watchman identified one of the Appellants.

8. None of the items stolen in Count 1 were recovered.  As for PW3’s phone stolen in count 2, the trial court found that it was recovered in the possession of the 1st Appellant.  However, as indicated in the charge, the phone stolen from PW3 was a Nokia 1110.  PW3 himself stated that the phone stolen from him was a Nokia 1200, and that the same was never recovered.

9. The Appellants’ convictions were based upon their several confessions contained in their statements under inquiry recorded by PW9 and PW12.  Only the 1st Appellant was defended by counsel.  The learned counsel raised objection to production in evidence of the 1st Appellant’s statement under inquiry with the following words –

“I object to production of the statement on the ground that it does not meet the threshold of the law.  The same should have been recorded before a magistrate and not before the police.”

10. The trial court did not conduct a trial within the trial over the admissibility of the statement, as it should have done. The threshold of the law that a confession has to meet in order to be admissible is not defined only by whether the same was taken before a proper person under section 25A of the Evidence Act, Cap. 80.  There are other factors, like whether the statement was given voluntarily without force or coercion or inducement or trickery, etc.  Considering the grave charges that the 1st Appellant was facing, and out of abundant caution, the trial court should have conducted a trial within the trial over the admissibility of the statement as objection to its admissibility had been raised.  Merely writing a ruling and admitting the statement on the very narrow issue that the statement had been taken by a police officer duly authorized by law to take it was clearly not enough.

11. The situation was even worse for the other Appellants.  They were not defended by counsel.  The record of the trial court does not show any evidence that the court enquired from them whether they objected to admission in evidence of their statements under inquiry.  Yet it is clear from the questions they asked the officers who recorded those statements after their admission into evidence that they objected strongly to the admissibility of those statements upon various grounds, including that they were tortured or otherwise coerced into making them.

12. These were accused persons who were facing capital charges.  They were already disadvantaged by the fact that they were not defended.  Out of fairness and abundant caution the trial court ought to have expressly asked them if they objected to admission into evidence of their statements under inquiry recorded by the police; and if they objected to them, as most likely they would have, going by their subsequent cross-examinations of the officers who recorded the statements, the court would have been obligated to test the admissibility of the statements by trials within the trial.

13.   As the Appellants’ convictions were based upon confessions contained in their statements under inquiry, and as the admissibility of those statements was not properly or at all tested in trials that should have been held within the main trial, the convictions are not safe, and they cannot stand.

14. In the event I will allow the three appeals herein in their entirety. The Appellants’ convictions are hereby quashed and the sentences of death imposed upon them set aside.  They shall be set at liberty forthwith unless otherwise lawfully held.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2017