Samwel Ngare Kayaa Alias Kuria Wanjohi Alias Mapua & Peter Kuria Wanjohi Alias Morio v Republic [2014] KECA 9 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MWERA, MAKHANDIA & SICHALE, JJ.A)

CRIMINAL APPEAL NO.5 OF 2011

BETWEEN

1. SAMWEL NGARE KAYAA aliasKURIA WANJOHI alias MAPUA

2. PETER KURIA WANJOHI alias MORIO..................APPELLANTS

AND

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

(Appeal from the High Court of Kenya at Mombasa (Ibrahim & Ojwang, J.J) dated 1st

March, 2011 inH.C.Cr.A. No. 230 of 2006)

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JUDGMENT OF THE COURT

The appellants,Samwel  Ngare Kayaa alias Kuria Wanjohi  alias Mapua  and Peter Kuria Wanjohialias Morio were charged with 4 counts.  In count I- they were charged with the offence of robbery contrary to section 296(2) of the Penal Code.  The particulars were:

''On the 20th day of September, 2003 at Shika Adabu area Likoni in Mombasa District of the Coast Province, jointly with others not before court, while armed with dangerous weapons namely pistols robbed No. 97071911 Administration CorporalFaki Ali Maleviof a  motor  vehicle  registration  number  KAR  983B  Toyota  Land­ cruiser, a ceska pistol serial number  G 0130 loaded with fifteen rounds of ammunition,  a pair of handcuffs,  a Sony J 70 mobile phone, a Seiko five wrist watch, a pair of shoes and an umbrella, four CD casseUes, a half  jacket, a wallet containing  official and civilian identity cards   plus  personale ffects  and cash Kshs.41,000/= all  valued at Kshs.15,000,000/= and at or immediately before or immediately afte the time of such robbery threatened  to  use  actual  violence  to  the  said  Administration Corporal No. 97071911Faki Ali Malevi."

In count II, the  1st  appellant,  Samwel  Ngare Kayaa alias  Mapua was charged with  the  offence  of  being  in  possession  of  a  firearm  without  a  firearm  certificate contrary  to  section  4(2)(a)  of  the  Firearms  Act  Cap.   114  Laws  of  Kenya.    The particulars were:

"On the 29th day of September, 2003 at Mwavumbo Location in Kilifi District of the Coast Province was found in possession of a firearm make Ceska pistol serial number G-130 without a firearm certificate."

In count  III, the 1st appellant,  Samwel Ngare Kayaa alias Mapua was charged with the offence of being in possession of ammunition  without a   Firearm Certificate contrary to section 4(2)(a) of the Firearm Act Cap. 114 Laws of Kenya.  The particulars were:

"On the 29th day of September, 2003 at Mwavumbo  Location in Kilifi District of the Coast Province was found in possession of eleven rounds of ammunition 9mm calibre without a certificate."

In count IV, the 2nd appellant, Peter Kuria Wanjohi alias Morio was charged with the offence of being in possession of Government stores contrary to section 324(3) of the Penal Code.  The particulars were:

"On  the 2nd day of October, 2003 at Kona ya Samani  Likoni in Mombasa  District of the Coast Province was found in possession of  Government  stores  namely  a  pair of  handcuffs   which  may reasonably  be  suspected  of  having  been  stolen  or  unlawfully obtained."

On 16th February, 2004 the trial commenced  before H. Njiru, the then Senior Resident Magistrate Mombasa and later proceeded before U. P. Kidula the then Chief Magistrate  Mombasa.    The  hearing  then  proceeded  before  S.  N.  Wahome,  Senior Resident Magistrate and finally before T. Mwangi, Senior Resident Magistrate who on 16th August, 2006 found the appellants guilty of all the charges.  The learned magistrate sentenced  the  appellants  to death  as  prescribed  by  law  and  proceeded  to  'suspend’ sentences in counts II, III and IV albeit not pronouncing the sentences meted out.

The appellants were dissatisfied with the convictions and the sentence meted out and they preferred an appeal in the High Court.

On 1st March, 2011 M.  Ibrahim  &  J.  B. Ojwang,  JJ.  (as  they  then  were) dismissed the appellants' appeal.   Undeterred by this tum of events, the appellants filed this appeal.

During  the  hearing  of the  appeal  before  us  Mr. Ngumbau for the  appellants argued 3 out of  the 18 grounds of appeal  filed by each of the appellants.  The 3 grounds argued before us were:

"i) Failure by the first appellate court to arrive at a conclusion that section 200 of the  Criminal  Procedure  Code  was  not  complied with.

ii) Failure by the first appellate court to sufficiently re-analyze and re-evaluate the evidence.

iii) Failure to consider the defences raised by the two appellants."

Mr. Oyiembo, learned Assistant Director of Public Prosecutions for the State opposed the appeal.  On the issue of non-compliance with section 200 of the Criminal Procedure Code, Mr. Oyiembo was of the view that there had been compliance.  He however, urged us to order a re-trial in the event that we were to find that there had been non-compliance with section 200 of the Criminal Procedure Code.

As stated above, the trial commenced before H. Njiru on 16th February, 2004 - who recorded the evidence of six witnesses that is PW1 Cpl. Faki Ali Makeri; PW2 Abdalla Mwinyi Majio; PW3 Pc. Evans Mwaura; PW4 Pascal Mweu; PW5 Highton Nduva Kyeti and PW6 Pc. David Matheka.    On 17th June, 2004 the conduct of the case was taken over by   U. P. Kidula,   the then Chief Magistrate, Mombasa.   The learned magistrate  complied  with the provisions of section 200(3) of the Criminal  Procedure Code by informing the appellants of their right to recall witnesses.   The 1st appellant applied to have PW1 Cpl. Faki Ali Makeri and PW3 Pc. Evans Mwaura recalled.  The duo were duly recalled and were cross-examined  by the 1st  appellant on 12th August, 2004.

On 25th January, 2005 the trial was taken over by S. N. Wahome, Senior Resident Magistrate,  U.  P.  Kidula  having  been  transferred.     S.  N.  Wahome  informed  the appellants of their right to  recall the witnesses and the two informed the court that they did not wish to recall the witnesses.  S. N. Wahome proceeded to record the evidence of PW7 - Lindsay Kipkemoi, PW8 Stanley Wambua, PW9 C.IP. Peter Omamo, PW 10 Pc. Jonathan  Shirengo  and PW11 Pc. Eliud Njuki.  He thereafter delivered a ruling on 29th July,  2005 and  found  that  the  appellants  had  a  case  to  answer.    Then, S.  N. Wahome was transferred before recording the appellants' defences.

On 1st  August, 2005 Boaz Olao, the then Chief Magistrate  made the following order:

"The trial Magistrate (Wahome, SRM) has now been transferred before finalizing this case.  The  matter  shall  now  be  heard  by Mwangi  (SRM)  on  9. 9.2003  in  accordance  with  section  200  of CPC ..."

Accordingly, T. Mwangi the then Senior Resident Magistrate took over the matter on 31st October,  2005 and  on  that  day  recorded  the 1st appellant's  defence.   On 15th February, 2006 the 2nd appellant asked for the case to commence de novo and in a ruling delivered on the same day the court declined on the basis that it was a delaying tactic.  In the ruling the court observed that:

"On 22nd September,  2005,  the  accused  persons  were explained their  rights  in  regard  to  the  matter  and  in  response  they  both decided to have the matter proceed from where it had reached."

Accordingly,  the 2nd appellant  made his unsworn  statement  of defence  on 19th July, 2006 and T. Mwangi delivered the judgment on 16th August, 2006 wherein he found the appellants guilty of all the charges.

What is the position in law when a new magistrate takes over the conduct of a case previously conducted by another?  The answer to this lies in Section 200(3) which provides as follows:

"(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

From the record, although T. Mwangi indicated that the appellants had been informed of their right under section 200(3) on 22nd September, 2005, the proceedings of 22nd September, 2005 do not reflect that that is what transpired in court.  The appellants are therefore  right  in  raising  the  issue  of  non-compliance  with  section  200(3)  of  the Criminal  Procedure  Code.   Failure to comply  with  the mandatory  provisions  above meant that the subsequent proceedings were a nullity and we so hold.

What next?  This is a case where the complainant PW1 Cpl. Faki Ali Makeri and PW2 Ahdala Mwinyi Majio were robbed at gunpoint and several items including a gun was taken from PW1.  The experience under the hands of the thugs was harrowing for PW1 who was threatened with death.  He too deserves justice.   On the other hand, the appellants have been in confinement for about ten (10) years now.  Balancing the two interests, we believe that the justice of the case demands that the case be re-heard in the subordinate court.   In the case of Muiruri  v R [2000] KLR 552 the court ordered  a retrial in the subordinate court after observing that:

“3. Generally whether a retrial should he conducted or not must depend on the circumstances of the case.

4. It will only be made where the interest of justice required it and it is unlikely to cause injustice to the appellant.  Other facts include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to quashing of the conviction were entirely the prosecution making or not ..."

As explained above, to our mind this is a proper case for the re-hearing and the ends of justice demand it.  In the premises, we allow the appeal and set aside both convictions and sentences.  The appellants will nonetheless stand a re-trial in the Chief Magistrate's Court at Mombasa before a different magistrate other than T. Mwangi, the then Senior Resident Magistrate who presided over the initial trial.    In the meantime, the  appellants  shall  remain  in  custody  until  presented  before  the  subordinate  court within  14 days from the date hereof, so that a hearing date for the trial is set.   The hearing of the trial should be expedited considering that the appellants have been in custody since 20th September, 2003.

Dated and delivered at Malindi this 28th day of March, 2014

J.MWERA

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

JUDGE OF APPEAL

ASIKE MAKHANDIA

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JUDGE OFAPPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY  REGISTRAR