Case Metadata |
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| Case Number: | Criminal Appeal 117 of 1984 |
|---|---|
| Parties: | Njenga v Republic |
| Date Delivered: | 16 Nov 1984 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Zakayo Richard Chesoni, James Onyiego Nyarangi, Alan Robin Winston Hancox |
| Citation: | Njenga v Republic [1984] eKLR |
| Advocates: | Mr Bali-Sharma for Appellant Miss Mbarire for Respondent |
| Case History: | (Appeal from the High Court at Nairobi, Ouma J) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | Mr Bali-Sharma for Appellant Miss Mbarire for Respondent |
| History Judges: | Lucian Basil Ouma |
| Case Summary: | Njenga v Republic Court of Appeal, Nairobi November 16, 1984 Hancox JA, Chesoni & Nyarangi Ag JJA Criminal Appeal No 117 of 1984 (Appeal from the High Court at Nairobi, Ouma J) Criminal Practice and Procedure - right of accused person - right to resummon and rehear witnesses where there is change of magistrate - case depending on evidence of identification and recognition - change of magistrate after evidence of first identifying witness - failure by succeeding magistrate to inform accused of right to recall witness - accused convicted - whether trial was proper - Criminal Procedure Code (cap 75) section 200(3). Evidence - witness - resummoning and hearing of - circumstances in which witness may be resummoned - case depending on evidence of identification and recognition - change of magistrate after evidence of first identifying witness - failure by succeeding magistrate to inform accused of right to recall witness - accused convicted - whether trial proper – Criminal Procedure Code (cap 75) section 200(3). The appellant was charged in a magistrate’s court with robbery with violence. The offence was alleged to have been committed at the house of the complainant one night at about 2 am. The prosecution case depended on visual identification and recognition of the appellant by the complainant and the third prosecution witness. After the evidence of the complainant only had been given in the case, a different magistrate took over and proceeded with the trial. The succeeding magistrate, did not inform the appellant of his right to have the complainant resummoned and at the end of the trial accepted the evidence of the prosecution and rejected that of the appellant and of his witnesses and convicted him. The appellant’s first appeal was summarily rejected and he appealed to the Court of Appeal. Held: 1. In a case depending on visual recognition, where the principal witness is heard by one magistrate and the second identifying witness by another, it is essential that the accused is informed of his right to resummon the witness. 2. The Criminal Procedure Code (cap 75) section 200(3) entitles an accused person to demand that any witness be resummoned and enjoins the trial magistrate to inform the accused person of that right. 3. Since it could not be said that if the succeeding magistrate had seen and heard both identifying witnesses he would necessarily have convicted, it could not be said that the failure caused no prejudice to the appellant. 4. The appellant’s first appeal should not have been summarily rejected. Appeal allowed. Cases 1. Yongo v Republic Criminal Appeal No 1 of 1983; [1983] KLR 319 2. Mwangi v Republic Criminal Appeal No 132 of 1983; [1983] KLR 522 3. Mohamed Rafiq v Republic Criminal Appeal No 56 of 1983 (unreported) Statutes 1. Penal Code (cap 63) section 296(1) 2. Criminal Procedure Code (cap 75) sections 200(3), 214(1), 352(2), 361(2) Advocates Mr Bali-Sharma for Appellant Miss Mbarire for Respondent |
| History Advocates: | Both Parties Represented |
| History County: | Nairobi |
| 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 |
IN THE COURT OF APPEAL
AT NAIROBI
( Coram: Hancox JA, Chesoni & Nyarangi Ag JJA )
CRIMINAL APPEAL NO. 117 OF 1984
BETWEEN
NJENGA.................................................................APPELLANT
AND
REPUBLIC...........................................................RESPONDENT
JUDGMENT
The short point remaining for our consideration on this second appeal is whether the failure of the learned Senior Resident Magistrate at Nyeri, (Mr Ombonya), who took over the station from Mr Omondi-Tunya after the evidence of the complainant only had been given, to inform the appellant and his co-accused of their right to have that witness resummoned and reheard under section 200(3) of the Criminal Procedure Code, occasioned a failure of justice.
The charge was one of robbery contrary to section 296(1) Penal Code, committed in the house where the complainant and her children were asleep at about 2 am on the June 27 1983. The prosecution case depends on visual identification and recognition of the appellant by the complainant and David Gitau Muhia (PW 3), who was called after the succeeding magistrate resumed the trial. On the basis of his acceptance of the prosecution evidence, the magistrate rejected the evidence of the appellant and his co-accused, and of their respective witnesses, holding that the purported alibis did not in any event cover the time of the robbery. The first appeal was summarily rejected under section 352(2) Criminal Procedure Code.
In a case depending on visual recognition, where the principal witness is heard by one magistrate and the second identifying witness by another, we think it essential that the requirements of subsection (3) should be observed, as it is for the protection of an accused person. In Jason Akumu Yongo v Republic Criminal Appeal 1 of 1983, we quashed a conviction where the particulars of the charge were altered and there was no compliance with the second provision to section 214(1) of the Criminal Procedure Code, because we could not be sure that the non-compliance with that which we regarded as an essential requirement has not occasioned a failure of justice.
We take a similar view in this case. We cannot be sure that if the second magistrate had seen and heard both identifying witnesses, he would necessarily have convicted. We cannot say that the failure caused no prejudice to the appellant. The first appeal should not have been summarily rejected.
In consequence, we allow the appeal. We have considered the exercise of our powers to remit the case to the subordinate court for a retrial under subsection (2) of section 361 of the Criminal Procedure Code, bearing in mind the principles and authorities we enumerated recently in this regard in George Karanja Mwangi and others v Republic, Criminal Appeal 132 of 1983, and in Mohamed Rafiq v Republic, Criminal Appeal 56 of 1983.
However, after listening to Mr Bali-Sharma’s submission on behalf of the appellant in relation to the alibi and the quality of the identification, we have decided not to do so. Miss Mbarire, for the Republic, does not support the conviction, or the summary rejection of the first appeal. The conviction is therefore quashed, the sentence set aside and the appellant is directed to be set at liberty.
Dated and Delivered at Nairobi this 16th day of November 1984.
A.R.W.HANCOX
.................................
JUDGE OF APPEAL
AG.. Z.R.CHESONI
....................................
JUDGE OF APPEAL
AG. J.O.NYARANGI
..................................
JUDGE OF APPEAL
I Certify that this is a true copy of
the original.
DEPUTY REGISTRAR
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