Procedure for Judgment and Sentence Revision

Solomon Locham v Republic

Criminal Case No 718 of 2013

High Court at Kapenguria

S Githinji, J.

October 13, 2015

Reported by Phoebe Ida Ayaya

Brief facts

There were two accused persons in the file namely Wicklife Sacher Lokape and Solomon Locham. Both were charged in the same charge sheet with a similar offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No.3 of 2006.  Wicklife Sacher Lokape was charged in the first count whereby he allegedly defiled one P C C, a girl aged 16 years old, on 9^th day of July 2013. Solomon Locham was charged in the second count with defilement of the same girl, but on 10^th day of July 2013 and at a different location.

The cases were heard together where two witnesses testified on 11/12/2013.  On 15/10/2014, a hearing date, the 2^nd accused, Solomon Locham was absent.  Warrant of arrest was issued.  One witness was present and the court ordered for the case to proceed in the absence of the 2^nd accused.  The case proceeded to the end and the judgment was passed on 18/8/2015. The trial court found each accused person guilty of the offence in the main count of defilement and sentenced each to serve 15 years imprisonment.

On 8/9/2015 the 2^nd accused was arrested and arraigned before the court.  He had been sentenced in absentia and prosecutor applied for his commitment to prison to commence serving the 15 years sentence.  He was given a chance to mitigate before he was sent to prison to start serving the sentence.

Issues

i. Whether the proceedings against the 2^nd accused was lawful, given the provision of section 206(1) & (2) of the Criminal Procedure Code;

ii. Whether the court erred in charging and sentencing the accused with a felony vis a vis a misdemeanor; 

iii. Whether the procedure by the court deprived the 2^nd accused of his right to be present throughout his trial as envisaged under the Criminal Procedure Code and the Constitution.

Criminal Procedure - Revision- procedure for revision – circumstances under which a court can issue revision proceedings- whether the court erred in charging and sentencing the 2^nd accused with a wrong charge in his absence - whether the procedure by the court deprived the 2^nd accused of his right to be present throughout his trial as envisaged under the Criminal Procedure Code and the Constitution

Criminal Procedure Code:

Section 206(1) & (2)

1. If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.

2. If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.

Held

1. When an accused person is charged with an offence, which is a misdemeanor and not a felony, can the Magistrate proceed in his or her absence.  The Sexual Offences Act does not describe offences in terms of Felonies and Misdemeanors.  However the Penal Code which defines the two words under section 4, which is on interpretation, a felony is indicated to mean:

 i. An offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more.

 ii. Misdemeanor is said to mean any offence, which is not a felony.

2.  Under section 8(1) to (4) of the Sexual Offences Act, the least sentence one can get for the offence of defilement, of which depends on the age of the survivor, is 15 years imprisonment.  Maximum is life imprisonment.  The offence is therefore a felony.  The Magistrate in Criminal file No.718/2013 was not entitled in law to proceed in absence of the 2^nd accused, who had absconded.

3.  After the 2^nd accused was arrested and arraigned in court, the provisions of section 206(2) of the Criminal Procedure Code were not complied with.  It’s probable his absence in court was as a result of a cause of which was beyond his control.

4. The order by the Magistrate for issuance of warrant of arrest and to proceed in absence of the 2^nd accused was made at the first instance the 2^nd accused was absent.  This was not right as the accused was not allowed time to probably surface and offer an explanation. There were no enough grounds to reasonably conclude that the 2^nd accused had absconded and was not willing or available on another day to further participate in the trial.

5. The procedure adopted by the Magistrate deprived the 2^nd accused of his right to be present throughout his trial as envisaged under section 194 of the Criminal Procedure Code and article 50(f) of the Constitution which states that an accused person should be present when being tried, unless his or her conduct made it impossible for the trial to proceed.  Proceeding without him amounted to a mistrial.

Conviction and sentence quashed, and do order a retrial before the Principal Magistrate, Kapenguria.