Skip to content
JudgmentJOSEPH NGANGA MKIREMA VS The Republic8 min read

JOSEPH NGANGA MKIREMA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(BEING AN APPEAL FROM THE CONVICTION AND SENTENCE  IN MOMBASA  CASE NUMBER S.O 82 OF 2018 (Honorable E. Nyaloti (CM)  delivered on 29th September 2020 .)

  1. The Appellant was convicted for the offence of sexual assault contrary to Section 5 (1) (a) (i) of the Sexual offences Act No. 3 of 2007 by Honorable E. NyalotI (CM) on 29th September 2020 in criminal case sexual offence 82 and was sentenced to 10 years imprisonment.
  2. He filled an appeal High court No 025 of 2023. The following are the grounds of his appeal ; That The Sexual assault not proved a required by the law; identification   was not proved and age of the child was not proved.Subsequently he filled an application to amend his grounds and an application but in separate appeal No 056 of 2023. The same was allowed.
  3. The amended ground of appeal are;
    1. That the trial court erred law by failing to see that is ws not suppled with witness statements contrary to Article 50 (2) (20 (i) of the Constitution.
    2. That the trial court erred in law and fact by failing to see that the charge was fatally defective
    3. That the trial court erred in law by failing to comply with Section 214 of the Criminal procedure code.
    4. That the learned trial court magistrate erred in law and facts by constraining the relevant penal law to be a minimum mandatory provision.
  4. The  original APPEAL was abandoned  and parties then filed submissions in this number CR A E056. It appears that the state did not respond to the new grounds.
  5. They are however technical grounds and just a perusal of the record will set the record straight.

  1. We now examine each of the grounds of appeal.
  2. The 1st ground is that the trial   was conducted in breach of  rights of the Appellant as he was not  furnished with copies of witness statements, despite the fact that the  prosecution   promised to comply with the requirement.

  1. The Appellant submitted that on the 16th day of  October 2018 , the charge was read to him  and nobody mentioned anything with regard to the issue of witness statements pursuant to Article 50 (2) (j) of the Constitution. That this is in total disregard of the fact that he was lay man in law and therefore  he expected the court to observe the law that pertains to the preliminary stages of a trial.

  1. T Appellant stated that the trial proceeded  and  the evidence of the minor compliant was taken yet he had no statements.
  2. I have looked at  the trial court’s record , and it is  indeed true that no pre-trial was conducted the trial court therefore omitted to undertake the crucial procedural duty of ensuring that the prosecution availed the evidence that they intended to rely on in the making of their case against the appellant.
  3. The prosecution were duty bound to provide all the relevant documentary evidence in form of witness statements and any other piece of evidence that the prosecution may have possessed prior to the committal proceedings. Pursuant to Article 50 (2)(j) of the Constitution.

  1. Article 50 (2) of the Constitution provides that and accused person is entitled to access in advance, to all the evidence that the prosecution intends to rely on in the trial and that being one aspect of a fair trial, it cannot be limited under article 25 of the Constitution.
  2. In the case of Joseph Amos Owino vs Republic CA CR APP NO. 450 of 2007 the learned  appellant judges held thus, “the appellant  may not have be  aware of is constitutional  right a and advocate would ; hence  he relied wholly on the court to ensure compliance with such right by the  prosecution/…..the trial  court and the appellate  court in their exercise of its jurisdiction should hence on their own  ensure that the  constitutional  right of the  appellant was fully complied with notwithstanding  that the appellant did not raise the same”
  3. On this subject Mr.  Thomas Patrick Gilbert Cholmondeley Vs Republic (2008) where the court of Appeal involved the interpretation of Section 77 of the former Constitution in the following terms.” We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such a copies of statements of witnesses who will testify at the trial copies of documentary exhibits to be produced at the trial and such like items”
  4. The trial court had an obligation to ensure compliance by the prosecution with the relevant constitutional provision that agitates or the issuance of all documentary evidence that is in the   possession of the prosecution to the accused person prior to the adducing of the evidence before court.

  1. The said requirement that and accused person is entitled to be furnished with all the documentary evidence that the prosecution intends to rely on, and to have that done way in advance of the same being presented before court, it a Constitutional entitlement that goes to the root of a fair trial and the trial court ws duty bond to ensure compliance with the requirement to the letter.
  2. The second ground is breach of Section 213 of the Criminal Procedure Code.
  3. The Appellant pointed out that the  prosection successfully applied for  leave to make an amendment to the charge, they were allowed  and   indeed  they amended the same. This was after PW1 HAD TESTIFIED. It also read the charge afresh to the Appellate and he pleaded not guilty to the fresh charge, and the matter was adjoined for hearing and subsequent court sitting.

  1. The record at page 10 is clear on what ensured in court on that day when the amendment was done and how he pleaded to the fresh charge, where the court recorded a plea of not guilty.
  2. At page 11 of the  proceedings  immediately after the plea of not guilty was recorded,,, the court received the evidence of Pw2.
  3. The law on amendments of charges provides that once an amendment has been done on a charge, the court should inform the accused person that he has a right to recall any witness who had previously testified, for purposes of cross examining them with regard to the amended charge.
  4. Section 214 of the Criminal Procedure Code provides;
  5. (1) where, at any stage of a trial before the close of the prosecution, it appears to the court that the charge is defective either in substance or inform, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.

Provides that;

(i)Where a charge is so altered, the court shall thereupon call upon the accused to plead the altered charge;

(ii) Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence fresh or to be further cross examined by the accused or his advocate, and in the last mentioned even, the prosecution shall have the right to re-examine the witnesses on matter arising out of further cross examination.

  1. The above law of the Criminal Procedure Code pertaining to the recalling of witnesses is couched in permissive terms by virtue of the work “may “but the court has a duty to inform the accused person of this right, before proceeding with the evidence of the next witness, and that is my main concern in this particular ground of appeal.
  2. The right to fair trial is non-derogable  under Article 25 (c ) of the Constitution  and the failure of the trial court to inform the Appellant of  the right  to recall the witness who had testified earlier was in  outright  denial of that right by the court.
  3. It is not doubt that the minor complainant had already testified at the time when the prosecution decided to amend the charge and it is also not in doubt that   this was the key witness of this matter, whose evidence had to be challenged under the law that pertains to the   credibility of evidence in criminal trials.

  1. It therefore follows that by denying the appellant the opportunity to cross examine the evidence of the compliant on the fresh charge, the trial court actually denied him right to challenge the most crucial evidence of the prosecution and in the process infringed upon the most crucial aspect of his right to fair trial. The ground therefore succeeds.
  2. The 3rd ground is that of a defective charge. The   appellant submitted that the circumstances leading to the amendment show that the complainant was not credible as she gave evidence which did not support the initial report.
  3. The court has however analyzed all the evidence and finds that there was evidence she mentioned some defilement and this was not just on incidence. That ground of appeal therefore lacks merit.
  4. The fourth ground of appeal is that he was arrested on 15th   October 2018 and convicted on 6th  October 2020 a period of two years, which period he was in custody pending the trial. 
  5. The said period of detention during trial was not taken into account in the sentence that was imposed.  Upon him.
  6. That he was granted leave to file his appeal within 14 days which he did, not because he did not have  the trial record.
  7. Again under Section 313 of the criminal procedure code the trial court is mandated to take that period into accont.So the ground also succeeds.

35, The court has noted that indeed there were some procedural breaches that occurred and the Appellant  did not enjoy all the rights of a fair trial as envisaged in the constitution

This means that the trial was vitiated by procedural lapses.

36. I have however looked at the entire record and I am persuaded that this is not one of those case where the ends of justice would be met by just quashing the sentence and the conviction.  The evidence needs to be properly presented and evaluated afresh,

37. Under the circumstances I declare the previous proceedings before the trial court a mistrial  and hereby order a re trial.  The appeal succeeds but the Appellant is to remain in custody until the trial court gives directions on the fresh hearing of the matter.

38.The order be served upon the trial court and the original record returned and be mentioned on 12th October 2024 before the Head of station Mombasa Chief magistrate’s court for allocation and directions.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF SEPTEMBER 2024

WENDY KAGENDO

JUDGE

IN THE PRESENCE OF

THE APPELLANT IN PERSON

MS MAINA FOR THE STATE

BEBORA COURT ASSISTANT

    JOSEPH NGANGA MKIREMA VS The Republic JOSEPH NGANGA MKIREMA VS The Republic