Please Wait. Searching ...
|Case Number:||Criminal Appeal 1785 of 1983|
|Parties:||Charles Kariuki v Republic|
|Date Delivered:||27 Jul 1984|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Joyce Adhiambo Aluoch, Fidulhussein Esmailji Abdullah|
|Citation:||Charles Kariuki v Republic|
|Advocates:||Miss LG Mbarire, State Counsel, for Respondent|
|Advocates:||Miss LG Mbarire, State Counsel, for Respondent|
Charles Kariuki v Republic
High Court, at Nairobi
July 27, 1984
Abdullah & Aluoch JJ
Criminal Appeal No 1785 of 1983
Criminal Practice and Procedure – witnesses - when presiding magistrate is charged - rights of an accused person – right to resummon and rehear witness where there is change in presiding magistrate – duty upon succeeding magistrate to inform accused of that right – failure to inform accused of right – effect of – trial a nullity – Criminal Procedure Code (cap 75) section 200(3).
Evidence – witness – right of accused person to recall and rehear – where there is change in presiding magistrate – duty upon succeeding magistrate to inform accused of right - failure to inform accused of right – effect of – trial a nullity – Criminal Procedure Code (cap 75) section 200(3).
The appellant was charged in the magistrate’s courts with four offences under the Penal Code (cap 63) relating to cheque fraud, theft and forgery involving some Shs. 1,200. After the presiding magistrate had heard all the evidence for the prosecution and the statutory statement of the appellant, he adjourned the hearing in order to enable the appellant to call a defence witness. The magistrate was in the meantime appointed to a different office in the civil service. When the trial resumed, the succeeding magistrate ascertained that the appellant had no objection to him continuing with the hearing, heard the appellant’s witness and proceeded to convict and sentence him the counts of theft, forgery and uttering a false cheque. The appellant appealed.
|History Advocates:||One party or some parties represented|
|Case Outcome:||Appeal allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 1785 OF 1983
The Appellant was charged before a learned Senior Resident Magistrate for the offence of stealing a cheque leaf (contrary section 275 of the Penal Code cap 63), forging a signature on the said cheque (contrary to section 349 of the Penal Code), uttering the said false cheque (contrary to section 353 of the Penal Code) and obtaining by false pretences (contrary to section 313 of the Penal Code).
The said learned magistrate heard all the evidence for the prosecution as well as statutory statement of the appellant and adjourned the hearing to enable the appellant to call a defence witness before the appointment of the said learned magistrate to the Office of Solicitor General, he was succeeded by another learned Senior Resident Magistrate under section 200 of the Criminal Procedure Code (cap 75) who after ascertaining from the appellant that he had no objection to the said learned succeeding magistrate to continue with the hearing of the case where the previous trial magistrate had left, proceeded to hear the witness of the appellant, deliver the judgment and convict and sentence the appellant on the counts of theft, forgery and uttering but acquitted him of the count of obtaining. Under section 200(3) of Criminal Procedure Code, an accused person is entitled to demand that any witness be resumoned and reheard and a duty is imposed on the succeeding magistrate to inform the accused person of such right.
In the instant case the appellant was not, according to the records, informed of his right to demand that any witness be resummoned or reheard.
It may be observed that our section 200 is similar to Raphael v Republic  EA 544, a Tanzanian case it was held that:-
"(1) it is a prerequisite to the second magistrate's exercising jurisdiction that he should apprise the accused of his right "to demand that the witnesses of any of them be resummoned and reheard” under S,196 of the Criminal Procedure Code;
(2) if the second magistrate has not complied with this prerequisite it is fatal, he has no jurisdiction and the trial is a nullity”.
In the above Tanzanian case the succeeding magistrate informed the accused that he had a right to recall and cross-examine any of the witnesses, whilst in the instant case, all that the succeeding magistrate asked the appellant was whether he had objection to the succeeding magistrate continue with the case where the first magistrate had left off.
The prosecution's case before the lower court was that the appellant brought a stolen forged cheque for Kshs 1200 to one Irungu Kahiga (P W I) as payment of meal sold to the appellant few days before, which the appellant denied. It would therefore appear that the question of credibility of the witnesses for the prosecution was at issue.
In the circumstances, the appellant having a right to resummon and rehear the witnesses, of which right he was not informed, though a duty was imposed on the succeeding magistrate to inform the appellant of such right, we think that the assumption of jurisdiction by the said succeeding magistrate without informing the appellant of his right, was clearly wrong and the trial by the succeeding magistrate was a nullity
We allow the appeal. We quash the conviction and set aside the sentences.
In the instant case, the trial having been declared a nullity, the proper course would be to order a new trial but we realize that the appellant who was alleged to be involved in fraud of sum of Kshs 1200 albeit accompanied by theft and forgery, has already served a sentence of about 9 months. We have anxiously considered a retrial and we are of the opinion that the appellant may not undergo peril of the second trial.
The appellant may be released forthwith unless otherwise lawfully held.
Dated and delivered at Nairobi this 27th day of July , 1984.
F.E ABDULLAH J.A ALUOCH