RONALD JUMA BUTETA v REPUBLIC [2010] KEHC 1292 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Appeal 106 of 2007

RONALD JUMA BUTETA:::::::::::::::::::::::::::APPELLANT

~VRS~

REPUBLIC:::::::::::::::::::::::::::RESPONDENT

JUDGMENT

The Appellant Ronald Juma Buteta appeals against the judgment of Bungoma Senior Resident Magistrate in Criminal Case Number 2842 of 2004. In count 1, the Appellant was convicted of the offence of unlawful cultivation of a prohibited plant namely bhang contrary to section 6 (a) of the Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994 and sentenced to serve five (5) years imprisonment.He was to be under police supervision for three (3) years on completion of sentence.In count II, the Appellant was convicted of being in possession of 200 rounds of ammunition contrary to section 4 (1) as read with 4 (3) of the Firearms Act Cap 114 of the Laws of Kenya and sentenced to serve 18 months imprisonment.The two sentences were to run concurrently.

In his memorandum of appeal, the Appellant faulted the convictions on the grounds that the case was not proved to the standards required and that his Constitutional rights were violated under section 72 (3) of the Constitution.

When the appeal was called for hearing, the state conceded to the appeal.The State Counsel, Mrs. Leting told the court that the case was heard by two magistrates Mr. K. Ngomo, Senior Principal Magistrate and Mr. Sogomo, Resident Magistrate.When Mr. Sogomo took over the case, he did not comply with section 200 (3) of the Criminal Procedure Code.The state considered that the Appellant has served the better part of the sentence and for that reason did not apply for retrial.I agree with the state on this point that a retrial would not servethe interests of justice.

On perusal of the record, it is evident that Mr. K. Ngomo heard all the five (5) prosecution witnesses.Mr. G. Sogomo heard the defence case and finally disposed of the case.On16/08/2007when Mr. Sogomo took over the case, he did not apply the provisions of section 200 of the Criminal Procedure Code (C.P.C) at that stage of the trial.Section 200 (3) requires that the succeeding magistrate informs the accused of his right to recall all the witnesses who have testified.The response of the accused must be recorded.In the proceedings of the material day, there was no mention of section 200 of the C.P.C or even its provisions.This was a violation of the rights of the accused under the section.Non-compliance with those provisions renders the whole proceedings null and void.I find that the rights of the accused person were violated and I declare the proceedings of the trial court null and void.

The convictions and sentences imposed are hereby set aside.The Appellant did not pursue the issue of violation of his rights under section 72 (3) of the Constitution during the hearing of the appeal.I note that the issue was not raised during the trial and therefore deprives the state of the opportunityto explain the delay.For that reason, I am not convinced that there is a good ground for making a declaration of such violation.If I am proved wrong, the provisions of the remedy under section 72 (6) of the Constitution may be utilized.

The Appellant is hereby set at liberty unless otherwise lawfully held.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 19thday of October, 2010. In the presence of the Appellant and the State Counsel Mrs. Leting.

F. N. MUCHEMI

JUDGE