Republic v Patius Gitobu Njagi,Ceaser Wachira & Mary Njeri [2018] KEHC 4349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE  NO. 45 of 2012

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

VS

PATIUS GITOBU NJAGI...........................................1ST ACCUSED

CEASER WACHIRA..................................................2ND ACCUSED

MARY NJERI..............................................................3RD ACCUSED

RULING

The Prosecution closed its case on 20th June 2018. I have had an opportunity of reading the entire record of proceedings. It must be appreciated that three quarters of this case was heard by Justice Roseline Korir. She took the evidence of fourteen (14) witnesses while I only heard three (3) witnesses plus one in the trial within trial. Upon perusal of the record I do note that PW2- Elizabeth Wanjiru Njagi; PW4 Winnie Ngendo Chege

PW5 Simon Maina Karimi, PW6 Sabina Wanjiru were not sworn before giving their testimony as there is nothing on record to confirm what really took place. PW9 Stephen Mwaura Thuku first testified on 21st April 2014. When he returned on 22nd April 2014 of cross examination he was not sworn nor reminded that he was still on oath. Section 151 of the Criminal Procedure Code provides as follows:

“Every person in a criminal case or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.”

It is therefore expected that the record clearly shows whether the above mentioned witnesses testified upon being sworn or not. In the present case the record is silent. Since this court is not the one that took that evidence it will simply go by what is shown in the record. In the case of Samuel Muriithi Mwangi VR Nyeri Court of Appeal Criminal Appeal no 39 of 2005 [2006]2KLR 94 the court stated thus :

“The usual practice of all the courts in Kenya is of course to show in the record that a witness has taken on oath before testifying. In the record before us, there is no way in which we can determine one way or the other that the witnesses were or were not sworn before they gave their evidence. Most likely they took the oath before giving evidence. But there is also the probability that they might not have taken the oath and if that be the position it would mean that the appellant was convicted on evidence which was not sworn. That would be in violation of section 151 of the Criminal Procedure Code and the provisions we have  set out herein. That in our view, cannot be a matter curable under section 382 of the Criminal Procedure Code.”

This court finds itself in a similar scenario. That being the case and due to the said error in the proceedings herein, I render the said proceedings a mistrial, and send the file back to the Presiding Judge of the Criminal division to take note and allocate the file to another Judge to hear and determine the case. It is unfortunate since this is an old case.

Orders accordingly.

Dated, signed and delivered this 31st day of July 2018 in open court ant Nairobi.

.......................................

HEDWIG I. ONG’UDI

JUDGE