Republic v David Keter Matakwei [2019] KEHC 7099 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT ATNAKURU

CRIMINAL CASE (MURDER)NO. 12 OF 2016

REPUBLIC..............................................................................PROSECUTOR

VERSUS

DAVID KETER MATAKWEI ..............................................RESPONDENT

RULING

The accused David Keter Matakwei was charged with the offence of Murder on the 11th March 2016.  The particulars of the offence are that on the 15th January 2015 at Gacharage village in Kuresoi Sub-County within Nakuru County he murdered Mercy Chepngetich. He pleaded not guilty.

The court record shows that since 11th March 2016, the prosecution case has not started as no witnesses have testified despite numerous hearing dates having been given by the court.

On the 6th February 2019 the prosecution sought time to explore a plea bargain agreement to the lesser charge of manslaughter which the accused and his advocate Mr. Mong’eri rejected on the 7th May 2019.

At the time, the prosecution told the court that it had no witnesses have to testify in support of the murder charge but could procure witnesses for the lesser charge of manslaughter.

The accused by his advocate Mr. Mong’eri opposed the application, stating that the accused has been in custody for over three (3) years and the substitution would prejudice the accused’s rights to fair trial as enshrined in the Constitution.

Section 214 Criminal Procedure Codegives the prosecution power to substitute or amend a charge sheet before close of the prosecution case but upon grounds, as the court thinks necessary.

Thus, the court is mandated to interrogate the reasons for the substitution or amendment to satisfy itself of the necessity and justification for the substitution, if any.

The only reason given by the prosecution is that it has no witnesses to testify in support of the murder charge, over three years since the accused took plea. Both the application and the reply were orally made and argued, with Ms. Odero, State Counsel appearing for the Director of Public Prosecutions (DPP).

In similar circumstances in the case Republic -vs- Michael Ezra Mulyoowa (2015) eKLR Kimaru J,considered the period the accused had been in custody, five years and although some witnesses had testified, the application was rejected the court holding that the conclusion of the case would take much longer and the accused person right’s would be infringed by the delay.

Considering the period the accused person has been in custody, and the prosecutions failure to procure witnesses, it would be a failure of justice to the accused if the court would allow a substitution of the charge which without a doubt would cause further delay in the prosecution and conclusion of the case.  I say so because, despite the powers granted to the prosecution to substitute charges and informations, no cogent reasons are given.  If the only reason stated is lack of witnesses, then the state should do the hourable thing, to withdraw the case instead of seeking to subject the accused to a new information.

An accused person’s rights are protected under Article 50 of the Constitution. It is his right to have a trial begin and be concluded without unreasonable delay (Article 50(2)(e) and Article 50(b)to be informed of the charge with sufficient detail to answer it.

To allow a substitution after three years and more so when no witness has testified would no doubt cause undue suffering and mental torture to the accused, who for all this time has mentally prepared himself to answer to the charge as framed.

I disallow the application.

Dated, signed and delivered this 16th Day of May 2019.

J.N. MULWA

JUDGE