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JudgmentFrancis Gachua Ngari VS The Republic11 min read

Francis Gachua Ngari VS The Republic

High Court at Voi High Court · · George. Dulu


(From the ruling in Criminal Case No. 113 of 2020 at Voi Law Courts delivered on 10th July 2023 by Hon. T. N. Sinkiyian (SRM)

  1. This is an appeal from a ruling on case to answer.
  2. The appellant was tried in the Magistrate’s court under two counts.  Count I was for stealing contrary to Section 268 as read with Section 275 of the Penal Code whose particulars were that on 17th December 2019 at 1530hours at Voi town in Voi Sub County stole two (2) metallic doors valued at Kshs. 20,000/= the property of RAPHAEL MBIKO.
  3. Count II was for malicious damage to property contrary to Section 339(1) of the Penal Code, the particulars of offence being that on the same date, time and place wilfully and unlawfully damaged two metallic doors by plucking off from the stall valued at Kshs. 20,000/= the property of RAPHAEL MBIKO.
  4. After the prosecution called its evidence, the trial Magistrate, delivered a ruling on case to answer after written submissions were filed by the appellant, who is the accused person in the trial court.
  5. In the said ruling delivered on 10th July 2023 the trial Magistrate found that the appellant herein had a case to answer and put him on his defence.  It is from that ruling on case to answer that this appeal was filed in person on 24th July 2023, but now appellant is represented by counsel Nyakoni Ratemo & Company Advocates.
  6. The grounds of appeal are as follows:-
  7. THAT the honourable trial Magistrate erred in both law and in fact in expressing an opinion contemplating a conviction if I chose to remain silent at the defence hearing as if she had made up her mind at prosecution’s case against the presumption of innocence of an accused person contrary to the provisions of Article 50(2a) of Constitution of Kenya 2010.
  8. THAT the honourable trial Magistrate erred for finding that there was sufficient evidence of the charge in piece-meal consideration rather than evaluate the evidence cumulatively as a whole to find it was not credible due to major gaps, inconsistencies and contradictions.  She also indulged in conjecture, speculations, hearsay, fabrications and took into account extraneous matters in arriving at her decision which resulted in a miscarriage of justice.
  9. THAT the honourable trial Magistrate erred in law for not considering and not finding that my right of access to documentary evidence and exhibits the prosecution relied on in the trial was denied leading to an unfair trial by ambush despite having made a prior written notice of application through the court as enumerated in DMFI 10.  The failure to supply me through the application notice violated Article 25(c) of COK 2010 on the right to a fair trial which cannot be limited as well as failed to review related case law authorities cited especially miscellaneous application of Criminal Case No. 77 of 2014: Republic =Versus= Raphael Muoki Kalungu.
  10. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that I was made to plead to preferred charges on 6th February 2020 before investigation report was tabled in court on 11th March 2020 and it’s on record I did not plead afresh on the date the investigations report was filed in court.
  11. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the preferred charges were based on an unknown offense in law as the charge sheet did not disclose the specific subsection of section 268 of Penal Code which has 5 subsections 1 to 5 of different elements of offenses spelt out therein.
  12. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the preferred charges were based on wrong provisions of law of the offense of breaking in and stealing from a shop in a public market which ought to be under section 306 of Penal Code as read with section 303(1) and (2) of Penal Code and Magistrate further failed to consider the related authority of Appeal case in Dan Imbiri Agoi & 2 Others =Versus= Republic (2019) eKLR.
  13. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the charge is duplicated as it was alleged to have been committed in one transaction.
  14. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the charge sheet was based on an ambiguous OB No. 63 which was not testified and not in adopted witness statements as opposed to the OB number in the adopted witness statements and testified as OB No. 56/17/12/2019.
  15. THAT the honourable trail Magistrate erred in law and in fact for not considering and not finding that the prosecution case was riddled with major inconsistencies and contradictions.
  16. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the count of stealing was not consecutively numbered as required by law under Sec. 137a(v) CPC and 2nd schedule of Criminal Procedure Code regarding standard form of framing of a charge of more than one count.
  17. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that I was denied police cash bail after arrest on 5th February 2020 and was held in custody in total disregard that the offence charged was eligible for a cash bail in violation of the provisions of Section 123(1) and 123(2) of Criminal Procedure Code.
  18. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that I was denied my constitutional right to speak to my advocate and persons of assistance to me on 5th February 2020 while held in custody in violation of the provisions of Article 49(1c) of Constitution of Kenya 2010.
  19. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the investigating officer coerced me to confess while in police custody in violation of my bill of rights on 5th February 2020 while held in custody in violation of the provisions of Article 49(1d) of Constitution of Kenya 2010.
  20. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that there was an unreasonable delay of justice for non-appearance of recalled witnesses for 11 months when PW1 and PW2 were issued summons for further recall for cross-examination and the delay caused a failure of justice.
  21. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that there was collusion of witnesses PW2 and PW4 since PW4 was introduced as an afterthought when he brought tenancy agreement to fill in gaps left by PW2 after cross-examination of PW2.
  22. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that PW2 being the complainant never reacted in distress by either seeking for help from members of market public or reporting to a very close Voi Police Station to arrest the perpetrator of crime at crime scene throughout the time he watched the alleged crime happening.
  23. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the adopted statements of PW2 and PW5 did not comply with requirements of criminal case procedure for not being certified with place, date and time of recording witness statements.
  24. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that no identification parade was conducted despite PW2 testifying he didn’t know me prior to alleged crime date and that he copied my full names from rent tribunal dispute summons.
  25. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that no scientific examination and analysis was conducted to establish any link with the photographic evidence adduced to place me at the crime scene.
  26. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that no effort was made at all to conduct search for recoveries by the investigating officer.
  27. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that PW4 gave hearsay testimony as he testified he was in Nairobi on alleged date of crime and he was admitted 8months alter into the trial.
  28. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that there was no independent witnesses at a public market crime scene during day time on a dedicated market day.
  29. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the prosecution witnesses corroborated I had another stall next to scene of crime conducting business at the same scene of crime area.
  30. THAT the honourable trial Magistrate erred in law and in fact for declining to consider my prayer to the court to be afforded a copy of typed court proceedings up to close of prosecution case before writing submissions upon which she declined my request on  3rd of May 2023 when she directed and ordered I must submit my written submissions regardless of whether typed court proceedings were ready or not against Section 392 of Criminal Procedure Code and Article 50(5a and 5b) of Constitution of Kenya 2010.
  31. THAT the honourable trial Magistrate erred in law and in fact for not finding that the cash bail was excessive and it was doubled to Kshs. 40,000 against the provisions as to bail since the cost of the 2 doors was Kshs. 20,000 contrary to provisions of section 123(2) of Criminal Procedure Code.
  32. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the prosecution over relied on circumstantial evidence of the tenancy dispute I filed at rent tribunal Mombasa seeking for legal redress as a law abiding citizen to recover my tenancy deposit of Kshs. 30,000.
  33. THAT the honourable trial Magistrate erred in law and in fact for not considering and not finding that the prosecution did not discharge the burden of proof responsibility and the prosecution case was not proved beyond reasonable doubt since the evidence adduced by the prosecution was marred with inconsistencies and contradictions, was not corroborated by other witnesses, it lacked credibility of independent witnesses and was not collaborated by the complaint report of DMFI 11.
  34. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by Nyakoni Ratemo & Company advocates for the appellant as well as the submissions filed by the Director of Public Prosecutions.  I have to state here that each side relied on decided court cases.
  35. From the grounds of appeal and the submissions filed, I note that the major contention of the appellant is that the trial Magistrate did not thoroughly consider or analyse the evidence tendered by the prosecution in determining whether the accused person has a case to answer, and secondly that the charges were duplex.
  36. The Director of Public Prosecutions on the other hand contends that the decision of the trial Magistrate was sound, justified and well founded in law.
  37. In my view, the issue of duplex or defective charge can arise at any time in the trial.  The trial court has the powers to strike out the charge or amend as the case will require.  An appeal on the decision of the trial court such issue can be filed and determined, if any party is dissatisfied with the trial court’s decision regarding the charge. 
  38. A decision on case to answer is something different and separate from the issue of defective or duplex charge, though the two issues might be related.  In the present case in my view, if the appellant wanted to challenge the charges he should have done so earlier, as primarily a case to answer is based on the evidence on record for the court to determine whether the accused should be required to defend himself, not on the format or number of charges and their relation to each other.
  39. I dismiss the complaint of a duplex charge, as stealing and malicious damage to property, in my view, can be committed in a series of events, even if the subject items are the same.
  40. I now turn to the complaint of a case to answer.  Though counsel for the appellant has argued strongly that the Magistrate did not consider the evidence thoroughly and analyse the same, in my view that is not what is required of a trial court at the stage of a case to answer.
  41. While the standard of proof at the end of the trial in criminal cases is beyond reasonable doubt, the standard of proof at case to answer stage is prima facie case.  Thus if the court, weighing the evidence on record and without the accused responding “MAY” convict, that is enough to justify putting the accused person on his or her defence.  This position was clearly stated by the E. A. Court of Appeal in the case of Ramanlal Bhatt =Versus= R (1957) EA 332
  42. I will add that, the fact that an accused person is put on his or her defence does not mean that he or she will be convicted.  That is why the accused person has a right to either keep quiet in his defence, or testify not on oath, or testify on oath, and also to call witnesses if he considers that there is anything to rebut.
  43. Thus in my view, an accused person cannot force a trial court not to put him or her on his or her defence.  Once he or she has been put on his or her defence, he or she has a constitutional right to elect the option most suitable for him in the case as codified under Section 211 of the Criminal Procedure Code (Cap.75).
  44. I thus find no merits in this appeal.  The appeal is hereby dismissed.  Since the trial herein has taken a very long time to finalise, I order that the trial before the Magistrate be finalised expeditiously.  The Deputy Registrar of this court will thus send the trial court file back forthwith. 

Dated, signed and delivered this 27th day of June 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Mr. Ratemo for the appellant

Mr. Sirima for the State

Appellant

    Francis Gachua Ngari VS The Republic Francis Gachua Ngari VS The Republic