1.This is a composite judgment relating to two criminal appeals. They are Criminal Appeal No E006 of 2021 and Criminal Appeal No E007 of 2021.
2.The two appeals arose from the same trial and judgment.
3.The appellants were initially separately charged with Burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code. They also faced alternative charges of handling stolen property contrary to section 322(a) of the Penal Code.
4.The charges were later consolidated and the appellants were tried together. The appellants were subsequently found guilty and convicted on the offences of burglary and stealing. They were accordingly sentenced to 7 years’ imprisonment on each count which sentences were to run concurrently.
5.Being dissatisfied with the conviction and sentences, the appellants preferred separate appeals by filing petitions of appeal. They raised several issues including the infringement of their right to a fair trial in non-compliance with article 50(2)(g) of the Constitution.
6.Directions were taken and the appeals were to be disposed of by way of written submissions. The appellants duly complied as well as the Prosecution.
7.The appellants expounded on the grounds. In the end, the appellants prayed that the appeals be allowed, conviction quashed and sentences set-aside.
8.The prosecution, however, conceded to the appeals on conviction and prayed that the appellants be instead re-tried.
9.This being the appellant's first appeal, the role of this appellate Court of first instance is well settled. It was held in the case of Okemo v R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose v R (2013) eKLR that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
10.In line with the foregoing, this court in determining this appeal is to satisfy itself that the ingredients of the offences of burglary and stealing, or alternatively those of the offence of handling stolen property, were proved and as so required in law; beyond any reasonable doubt. Needless to say, I have carefully read and understood the proceedings and the judgment of the trial court as well as the record before this court and also the submissions.
11.This court will, in the first instance, address the ground of infringement of article 50(2)(g) of the Constitution.
12.The court has previously rendered itself the article 50(2)(g) of the Constitution. I am still of that position.
13.This is what I stated in Migori High Court Criminal Appeal No 44 of 2019 N.M.T. alias Aunty v R (unreported): -
14.The record does not indicate any compliance with article 50(2)(g) of the Constitution as well as the provision of section 43(1)(a) of the Legal Aid Act. No 6 of 2016. The trial was, therefore, a nullity.
15.The upshot is that the conviction and sentences cannot stand. The conviction is hereby quashed and the sentences set-aside accordingly.
16.The court will now consider whether to release the appellants or they be re-tried.
17.The offences are serious in nature. They were allegedly committed in May, 2020. The complainants are all within Onoch Trading Centre where they carry out various businesses.
18.The other witnesses are also readily available and the prosecution has even offered to conduct a re-trial.
19.Given the nature of the offences, justice demands that the culprits face appropriate sanctions. This is a case fit for a retrial. I so find.
20.In sum, this court hereby allows the appeal, quashes the conviction and sets-aside the sentences on the sole ground of non-conformity with article 50(2)(g) of the Constitution and section 43(1)(a) of the Legal Aid Act. No 6 of 2016.
21.A re-trial is also ordered. The appellants shall be released into police custody and be produced before a competent court to try them within the next 7 days of this judgment.Orders accordingly.