Case Metadata |
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| Case Number: | Criminal Appeal 608 of 1985 & 265 of 1986 (Consolidated) |
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| Parties: | Julius Mugo Kiarie & Peter Maina Ndirangu v Republic |
| Date Delivered: | 27 Aug 1986 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | Tom Mbaluto |
| Citation: | Julius Mugo Kiarie & another v Republic [1986] eKLR |
| Advocates: | Mr Kanyi for the 1st Appellant Mrs D Njogu, State Counsel, for the Respondent |
| Case History: | (Appeals from the Resident Magistrate’s Court at Nyahururu, W M Muiruri Esq) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | Mr Kanyi for the 1st Appellant Mrs D Njogu, State Counsel, for the Respondent |
| Case Summary: | Kiarie & another v Republic High Court, at Nairobi August 27, 1986 Mbaluto J Criminal Appeals Nos 608 of 1985 and 265 of 1986 (Consolidated) (Appeals from the Resident Magistrate’s Court at Nyahururu, W M Muiruri Esq) Criminal Practice and Procedure – cross examination – right of accused person to cross-examine witness – evidence of co-accused implicating appellant – no record that appellant was given a chance to cross–examine co-accused – whether appellant’s conviction proper. Evidence – summing up – trial magistrate drawing conclusions not backed by evidence – accused’s defence not considered’– whether accused’s conviction proper. The appellants were tried and convicted in a magistrate’s court for shopbreaking contrary to sections 306(a) and 279 of the Penal Code (cap 63). The only evidence against the 2nd appellant was that of his co-accused, the 1st appellant, a tailor, who stated that the 2nd appellant had brought the stolen property to him for the purpose of making clothes. There was nothing on the record to show whether the 2nd appellant was allowed to cross-examine the 1st appellant. In convicting the appellants, the trial magistrate, without giving reasons, observed that it was unlikely that the 2nd appellant would have taken the property to the 1st appellant without prior arrangement. The appellants appealed to the High Court. Held: 1. There was failure on the part of the trial magistrate to avail the 2nd appellant of his right to cross-examine the 1st appellant which resulted in a miscarriage of justice. 2. There was no evidence on which the trial magistrate could base his statement that it was unlikely that the second appellant would have taken the exhibits in issue to the 1st appellant without prior arrangement. 3. The statement by the 1st appellant that he had received the exhibits for the purpose of making clothes for the 2nd appellant was a probable defence which the trial court could have considered. Appeal allowed. Cases Mattaka v Republic [1971] EA 495 Statutes Penal Code (cap 63) sections 279, 306(a) Advocates Mr Kanyi for the 1st Appellant 2nd Appellant unrepresented Mrs D Njogu, State Counsel, for the Respondent
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| History Magistrate: | W.M.Muiruri |
| History Advocates: | One party or some parties represented |
| History County: | Nyandarua |
| 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'S 608 OF 1985 and 265 OF1986 (CONSOLIDATED)
1. JULIUS MUGO KIARIE
2. PETER MAINA NDIRANGU.........................................APPELLANTS
VERSUS
REPUBLIC........................................................................RESPONDENT
JUDGMENT
The appeals of Julius Mugo Kiarie (1st Appellant) and Peter Maina Ndirangu (2nd Appellant) have been consolidated.
The appellants were, after trial, convicted of shop breaking and stealing contrary to section 306(a) and 279 of the Penal Code (cap 63) and each sentenced to 3 years imprisonment plus I stroke of the cane. They have appealed to this court against both conviction and sentence.
The learned state counsel, Mrs Njogu did not, quite properly in my view, seek to support the two convictions.
As regards the second appellant, the only evidence against him was that of his co-accused, the 1st appellant. This evidence was to the effect that it was the 2nd appellant who brought the stolen property to the 1st appellant who brought the stolen property to the 1st appellant. Counsel for the 1st appellant very graciously argued in favour of the 2nd appellant, that this appellant was not given an opportunity to cross-examine the 1st appellant after the latter had implicated him in the offence. A perusal of the record reveals that the 1st appellant was cross-examined by the prosecutor but it is silent on whether any opportunity was accorded the 2nd appellant to cross-examine him. There is therefore considerable doubt about this.
In the case of Mattaka v Republic (1971) EA 495 the Court of Appeal held that refusal to allow cross-examination of the co-accused will ordinarily result in the quashing of the conviction where the trial court has relied on the evidence. In the instant case there was no formal refusal to allow the cross-examination but the 2nd appellant was unrepresented. Failure on the part of the trial magistrate to avail the 2nd appellant on his right to cross-examine the 1st appellant resulted in a miscarriage of Justice.
Regarding the 1st appellant it is on record that he was a tailor with a shop in Nakuru. In his defence this appellant stated that he had received the materials the subject matter of the charge from the 2nd appellant for the purpose of making clothes for the 2nd appellant and his brothers. It is not uncommon for tailors to receive from customers materials in such circumstances. This was therefore a probable defence which the trial magistrate could have considered. In his judgment the trial magistrate merely stated that it was unlikely, without giving any reasons, that the 2nd appellant would have taken Exhibit 1 – 7 to the shop of the 1st appellant without prior arrangement with him. There was of course no evidence of any prior arrangement between the two appellants and the basis of the trial magistrate’s statement would appear to be unclear.
All in all, the evidence against the two appellants was in my view of the weakest type and consequently their convictions on the charge of shop breaking and stealing was quite unsafe. I would therefore allow the appeals quash the conviction and set aside the sentences imposed on each of them. The appellants are to be set free forthwith unless otherwise lawfully held.
Dated and Delivered in Nairobi this 27th day of August 1986.
T.MBALUTO
JUDGE
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