Republic v Ahmed Njeka Munga [2022] KEHC 1331 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 32 OF 2015

REPUBLIC…………………………………………………………PROSECUTOR

VERSUS

AHMED NJEKA MUNGA ………………………………………….1st ACCUSED

RUMBA CHIGAMBA ………………….…………….…….............2nd ACCUSED

NGAO TSUMA NGAO ………….…………….…….………...........3rd ACCUSED

RULING

1. The accused persons Ahmed Njeka Munga, Rumba Chigamba and Ngao Tsuma Ngao face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.

2. The particulars are that Ahmed Njeka Munga, Rumba Chigamba and Ngao Tsuma Ngao on the night of 2nd day of June 2015 at Gandini Location within Kwale County jointly with others not before court murdered Harrison Bekanga Munga. The prosecution called 2 witnesses to support its case that the accused persons committed the offence herein. Defence did not file submissions for no case to answer and the matter was reserved or ruling.

3. The court forced the prosecution to close their case on account of the fact that this is a 2015 matter and only two witnesses had testified so far. The matter was therefore set down for ruling on 10th March 2022 but was adjourned to 17th March 2022 for the court to peruse through the proceedings which has gone through the hands of about five judges since 2015.

4. On 20th July 2016 when the matter first came up for hearing, the prosecution had 3 witnesses in court but Mr. Gakuhi advocate indicated he was yet to be supplied with photographs and statement of the scene of crime officer. The matter was therefore adjourned to 2nd November 2016.

5. On 2nd November 2016, the matter could not proceed because the trial judge was out of the country attending a conference. On 15th March 2017 when the matter was coming up again for hearing, the same did not proceed because another accused person had been arrested charged in Criminal Case No. 3 of 2017 which was supposed to be consolidated with Criminal Case No. 32 of 2015.

6. Upon consolidation of Criminal Case No. 3 of 2017 and No. 32 of 2015, the matter was set up for hearing on 1st November 2017. On 1st of November 2017, the prosecution was ready to proceed with 3 witnesses but Mr. Were for the 3rd Accused was not present. The matter could therefore not proceed. When the prosecution insisted on proceeding, the DR informed them that the judge was not sitting at 2. 30 pm as it had earlier been indicated.

7. There was supposed to be another hearing date set for 25th April 2018 but it appears the file was not brought up. On 3rd October 2018, again the prosecution was ready with 3 witnesses but Mr. Were advocate was again absent and the hearing was set for 13th December 2018 at Shanzu Law Courts. On 13th December 2018, Mr. Were advocate was again absent although the prosecution was ready to proceed with 3 witnesses and the case was again adjourned that the 3rd Accused be provided with another advocate.

8. The next hearing date was set for 10th April 2019 but it fell on vacation so the matter could not proceed. The first time that the prosecution was able to tender evidence of their witness was on 10th December 2019, but again the witness under protection and the wife of the decease were stepped down because of technical hitches on the part of the prosecution.

9. On 13th February 2020, PW1 a protected witness and PW2 the wife of the deceased testified. The court was not able to reach the 3rd witness who was also in court on that day. On 16th December 2020, I took over this matter and directions under Section 200 (3) CPC were given on 11th February 2021. Hearing dates were fixed on 27th, 28th and 29th Sep. 2021 because the prosecution was yet to call 10 witnesses but unfortunately the trial judge was out of the station on official duties.

10. When this matter came up on 10th February 2022 and the prosecution sought adjournment on the ground that they did not have witnesses in court, the court made an order that there was no good reason for adjournment and that the prosecution should close their case.

11. Going back to the records and the evidence so far adduced by the two prosecution witnesses, this court finds that the delay in the matter was not occasioned by the prosecution and the remarks that they had had their fair share was erroneous considering the history of the matter which has been handled by about 5 judges and several prosecuting counsels.

12. It is therefore this court’s considered view that in the interest of justice and fairness, the prosecution’s case should be reopened to give them an opportunity to recall witnesses whose evidence was not tendered due to reasons which were not of their making.

13. The matter will be mentioned on 9th June 2022 for purposes of fixing a hearing date. Summons requiring attendance to issue to the Investigating Officer Corporal Adan Roba.

Dated, signed and delivered in Open Court/online through MS TEAMS,

this 17th day of March 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of: -

Ogwel- Court Assistant

Ms. Kambaga for the State

Mr. Mushele for the Accused Persons

Accused 1 present in person

Accused 2 present in person

Accused 3 present in person

HON. LADY JUSTICE A. ONG’INJO

JUDGE