Awuor v Republic (Criminal Appeal E040 of 2021)  KEHC 16372 (KLR) (16 December 2022) (Judgment)
Neutral citation:  KEHC 16372 (KLR)
Republic of Kenya
Criminal Appeal E040 of 2021
RPV Wendoh, J
December 16, 2022
Justus Ooko Awuor
(Being an appeal from the judgment of the Hon Senior Principal Magistrate Migori, which was delivered on August 4, 2021.)
1.This is an appeal from the judgment of the Hon Senior Principal Magistrate Migori, which was delivered on August 4, 2021.
2.The appellant Justus Ooko Awuor, was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code.
3.The particulars of the charge are that on August 18, 2020 at Aego village in Nyatike Sub County within Migori County, robbed Harison Otieno Songa of cash Kshs 1,000/= and at or immediately before or immediately after the time of that robbery, injured the said Harison Otieno Songa.
4.After a full trial, where the prosecution called six witnesses, and the appellant gave a sworn statement in his defence, the appellant was convicted and sentenced to suffer death.
5.The appellant is aggrieved by the said judgment and filed this appeal citing the following grounds;(1)that the trial court erred when it failed to comply with article 50 (2) (g) and (h) of the Constitution of Kenya;(2)that the offence of robbery with violence was not proved to the required standard.
6.Though the appellant had indicated that he would file submissions. The court allowed him two chances but he never filed any by the time I was writing this judgment. The prosecution counsel, Mr. Omooria, filed his submissions on September 11, 2022. He conceded the appeal for reasons that upon perusal of the proceedings, he confirmed that the trial court did not comply with article 50(2)(g) which requires that the court informs an accused of his right to counsel.
7.Counsel however, submitted as regards the other grounds of appeal that the offence of robbery with violence was sufficiently so proved. He relied on the decision of Oluoch v Republic  KLR 549 where the Court of Appeal set out the ingredients of the offence of robbery with violence and what the prosecution needs to establish. He urged that the prosecution must be able to establish one of the three ingredients i.e. that the offender is armed with a dangerous or offensive weapon or instrument; or that the offender was in company with one or more other person or persons and thirdly, that after or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person.
8.Counsel submitted that the testimony of the complainant (PW1), was that he was accosted at his home, the appellant was armed with a panga with which he assaulted PW1 as he demanded money; that he took Kshs 1,000/= that the complainant had.
9.It is the courts view that it should deal with the issue whether the trial court complied with article 50(2)(g) and (h) first before considering the other grounds of appeal. This is because if the court agrees with the appellant that indeed the appellant’s rights were violated, then the appeal will be determined at that stage. Article 50(2)(g) and (h) of the Constitution provides as follows:-
10.The above provision guarantees an accused person’s right to fair trial. Under sub article 5(2)(g) the trial court is required to inform an accused person of his right to counsel. This is important so that an accused can make an informed decision whether or not to procure the services of an advocate and if he can not afford, one, he may approach the Legal Aid Committee for appointment of counsel if he qualifies. Under the above provision, the court has to inform the accused of the said right promptly which means, before plea is taken or soon thereafter so that accused can prepare for his defence. The court in Chacha Mwita v Republic Criminal Appeal 33 of 2019 (Migori) discussed the said provision at length. The court said as follows:-
11.In Joseph Kiema v Republic  eKLR, J Nyakundi also considered Article 50 (2)(g) and stated as follows:-
12.It is clear that the trial court did not inform the appellant of his right to counsel. Under article 25 of the Constitution, the said right cannot be derogated. Guided by the cited decisions, failure to comply with the said provision renders the proceedings a nullity.
13.Article 50(2)(h), of the Constitution places a duty on the State to assign an advocate to an accused at the State expense, if substantial injustice would otherwise result. The issue was discussed in David Macharia v Republic  eKLR where the court said:-
14.In Republic v Karisa Chengo & 2 others  eKLR where the Supreme Court said:-
15.The court has to consider the complexity of the case, the seriousness or nature of the offence and ability of the accused to defend himself. Although the charges that the appellant faced were very serious and attract a death sentence, yet the appellant has not demonstrated that he could not afford counsel or that the case was so complex that he could not defend himself eg, language barrier and that he has suffered substantial injustice. It must therefore be demonstrated that injustice will result. In my view, the said right is therefore not absolute unless it is shown that injustice will result.
16.Having found that the right under article 50(2)(g) was violated, and the same cannot be derogated, the resultant proceedings are a nullity and I hereby quash the conviction and set aside the sentence. The other grounds fall by the way.
17.The prosecution counsel urged this court to order a retrial. In the case of Ahmed Sumar v Republic  EA the Court of Appeal set out the criteria upon which a court may order a retrial. The court stated as follows: -
18.One of the criteria for ordering a retrial is that the potentially admissible evidence is likely to result in conviction. I have duly considered the evidence on record. The complainant testified that the person who attacked him injured him with a panga, took Kshs 1,000/= and that the person did not manage to escape from the scene. PW2 and PW3 corroborated PW1’s testimony. I find that the potentially admissible evidence is likely to result in a conviction.
19.Secondly, the appellant was charged with a very serious offence that attracts a death sentence upon conviction. The complainant was seriously injured and robbed and it is only proper that this case goes to full trial so that the truth is established and the culprit if found guilty, should face the full force of the law.
20.Thirdly, the appellant was convicted on August 4, 2021, about a year two months ago. He was sentenced to suffer death. He has not served a substantial part of the sentence. Ordering a retrial will not cause him any prejudice. The court has to also consider that the complainant was violated and his rights must also be considered too.
21.I find that there is good reason for the court to order a retrial which I hereby do.
22.In the end, I make the following orders: -(i)The appellant be released to Macalder Police Station and be presented before the Chief Magistrate’s Court Migori on December 19, 2022 for plea and fresh trial.(ii)Since it is a retrial, the matter be expedited. In the event the accused is convicted, the court must take into account the prison sentence served in this case.
DELIVERED, DATED AND SIGNED AT MIGORI THIS 16TH DAY OF DECEMBER, 2022.R WENDOHJUDGEJudgment delivered in the presence of:Mr Maatwa for the State.Appellant present in person.Evelyne Nyauke – Court Assistant