No. 90/2013
REPUBLIC OF KENYA
IN THE HIGH COURT OF
KENYA AT MACHAKOS
CRIMINAL APPEAL NO.
83 OF 2012
JOHN WAMBUA MAKEWA
………………………....…...APPELLANT
VERSUS
REPUBLIC ………………………………………………....RESPONDENT
(Being
an appeal from the original conviction and sentence in Tawa Senior Resident
Magistrate’s Court, Criminal Case No. 61/2012 by Hon. J.W. Gichimu SRM on 18/6/2012)
JUDGMENT
1.
John
Wambua Makewa, hereinafter “the appellant” was charged with the
offence of attempted murder contrary to section 220(a) of the Penal Code. It was stated that on the 21st
March, 2010 at Makueni Catholic Mission House , the appellant attempted to
unlawfully cause the death of Fidelis
Nzuki Mutuota by shooting him with a BRNO double Barreled Special Poldi
Elektro Shot Gun, serial number 1-005501
-75 and wounded him in the abdomen, left upper
arm and both thighs.
2.
The appellant pleaded
not guilty to the charge. He was tried,
convicted and sentenced to serve 7 years imprisonment. He has appealed against conviction and
sentence.
3.
In the amended Memorandum of Appeal the appellant relied on the grounds
that: -
§ The
learned trial magistrate failed to appreciate the elements of the charge.
§ He
misdirected himself on several material facts;
§ The
decision was wholly based on speculation and total disregard of the facts that
were presented to him;
§ He
gave undue weight to some facts while ignoring other important facts;
§ He
convicted the appellant on the evidence
of single witness;
§ The
trial magistrate gave credence to the prosecution’s evidence and not that of the defence;
§ The
trial magistrate erred by reaching a finding that the required elements of
proving the crime namely ‘mens rea’ and ‘ actus
reus’ existed;
§ And
that the proof was not beyond reasonable doubt.
In
the circumstances the sentence was harsh, vindictive and excessive.
4.
The appeal was opposed
by the State, Mrs C.N. Gakobo, Senior Principal Prosecution Counsel put in a
notice of enhancement of sentence meted out on the appellant to be commensurate
with the circumstances of the case and nature of injuries sustained by the
complainant
5.
Facts of the case
were that the appellant was the priest incharge of the Makueni Catholic Parish.
The complainant Father Fidelis Nzuki
Mutuota also a priest at the same Parish arrived at 8.00pm. He had supper with Father Boniface Kioko, Boniface Mutua, an ex-seminarian, Michael Mutuku and the appellant. The
appellant assigned them duties of conducting mass at various stations the
following day. The complainant went to
bed at 9.30pm. He shared a room with Bonface Mutua. He was joined by Boniface Mutua and the appellant at about 10.00 pm. They had causal conversation. In the process the complainant made them
aware of his results of the MBA Course he was undertaking at the Catholic
University that he had just received and was to take to the Bishop at about
11.30pm. It was raining at the time and
a power blackout followed, prompting the appellant to retire to his bedroom.
6.
Later in the night, he
was woken up by a loud sound he believed to be a gunshot at about 4.15am. He called out Father Boniface Kioko who
confirmed having heard the sound. They
listened keenly. At about 4.25 am the appellant entered their room carrying a
shotgun. He informed them that there
were thieves outside and they accompanied him to his bedroom. He handed the
complainant three bullets which he was to give him on demand. He further handed him a pistol to carry for
him. They went to a private sitting
room. The appellant went to the window
and fired twice towards the sisters’ convent.
The appellant opened the doors to the corridor. They looked through the window but did not see
any thieves. The appellant however,
argued that the thieves were in the sitting room and told the complainant to
crawl on the floor and open the door. He
complied. However, when he attempted to
open the door the appellant shot him on the arm and chest. He shouted in Kikamba language that he had
shot him. The appellant responded that it
was the thieves who shot him. He asked
him how he could shoot his best friend.
The appellant then shot him on the thigh. He did not see Father Boniface. He crawled
to the door. Twenty minutes later Father Michael Mutuku went to assist
him. He was taken to hospital.
7.
PW2, No. 75602, PC Joseph Mutie a Scenes of
Crime Officer, took photographs of the scene of crime. He printed a report thereof and produced them
in evidence.
8.
PW3, Sister Salome Kamene Peter was woken up
by a bang on the door at about 5.00am.
On opening she encountered Sisters
Jane Francis and Agatha who told
her that the rear door had been hit. She
telephoned the appellant to find out whether there thugs around there, he told
her that there were thugs but everything was under control. Immediately she hang up she heard a gunshot
behind their house. Thereafter they
heard two (2) more gunshots. She
telephoned Father Makewa but he did
not respond. They moved to the Chapel to
pray. Father Boniface telephoned to tell them about what had befallen the
complainant. They found the complainant
lying on the corridor having been injured.
9.
PW4, Father Boniface Kioko heard gunshots at
around 5.00am. He received a telephone
call from PW3 and he advised her to stay where they were. When he heard the fourth shot, he hid. Later on, he heard a voice outside. He went out to find Father Mutuku who told him that the complainant had been shot.
10.
PW5, Father Michael Mutuku heard three (3)
gunshots. A person shouted that he had
been shot. He then heard Father Makewa calling out saying Father Nzuki had been shot by thieves. He
took a confession from the complainant.
He thereafter assisted in taking him to hospital.
11.
PW6, Boniface Mutua Nzioka stated that he
slept in the same room with the complainant.
Before they slept the appellant joined them. According to him the
complainant and appellant had a friendly conversation. The appellant told them about his trip abroad
while the complainant showed them his testimonials from the University of Nairobi
where he obtained a masters degree.
12.
They stayed up until
1.00am, lights went off and it started raining.
The appellant left the room.
Prior to sleeping he heard noise outside that sounded like a car had hit
a tin. At about 5.00am he heard some
commotion outside. He then heard the
appellant knocking their door. He
entered and said that thieves were knocking on their window. The appellant and the complainant went to the
window and he heard the appellant ask the complainant to hold something. They shot from the window. The appellant communicated on the telephone
and told them that the sisters had said that thieves had gone to their side and
were firing from there. As the two (2)
proceeded to the corridor, he hid under the bed. He heard a gunshot. He ran to the sitting room and saw the
appellant running saying that the thieves were shooting at them and they had
shot the complainant. The complainant
asked for help and the appellant asked him to wait for them to look for the
car. They took the complainant to
hospital.
13.
PW7, Sister Nthiwa Nzerete and PW9, Sister Jane Francis Kamanthe Maluka were woken up by sounds
they referred to as bangs that they thought were either gunshots or an electric
fault. They confirmed in material
particular what was stated by PW3. They did not see who shot the complainant.
14.
PW8, No 86420
P.C Samuel Odhiambo Oumu on receipt of instructions from the officer
commanding Makueni Police Station moved to the scene of the incident. He found window panes of the house
smashed. They searched for cartridges in
vain. PW10, Onesmus Katua, Clinical
Officer at Makueni Hospital relied on a report made by Professor Mbindyo of Mater Hospital. He completed the P3 form (medical examination report). As per the
report the complainant had a history of being shot on the left arm and
leg. The left arm was in a plaster of
Paris, the upper 1/3 of the thigh had scars.
On the thorax and abdomen he had scars on the lower right. The distal radius and left ulna were shattered
and the tissue was severely damaged. He
also had a tear on the right femoral vein; injury to the right sciatic nerve
and bullet injuries to both thighs.
15.
PW11, Superintendent Joseph Munira, the investigating
officer visited the scene of crime. He
found some window panes broken. Their
search for spent cartridges was in vain.
There were no foot prints. The
appellant handed over to them some spent cartridges. He recovered a pistol and
shotgun that were sent to the ballistic expert for examination. His investigations made him conclude that
there were no robbers as alleged by the appellant. He therefore charged him with attempted
murder.
16.
PW12, No. 230245, SP Lawrence Nthiwa a Firearm
Examiner examined the firearms a shotgun, S-10055-0175 and a pistol S. No.
A656788 four (4) expended shotgun shells and 12 rounds of ammunition, 12
fragments and made a report thereof.
17.
PW15, Stephen Mbindyo, an Orthopaedic Surgeon
a consultant at Mater Hospital confirmed having attended to the complainant and
having prepared a discharge summary thereof.
18.
In his sworn evidence
the appellant stated that the complainant was his friend and he had assisted a
couple of his relatives. On the material
date, they conversed jovially until 1.00am when they dispersed. It was raining and the there was no electric
power. At 3.45am he saw some light. He did not pay much attention to it. At around 4.45am, he saw some light outside
his room which looked like a torch. He
woke up wondering whether thugs had struck.
The thugs asked him for money and a gun.
He went to the safe, took his shotgun and loaded it with two (2)
bullets. He went to the sitting room and
fired twice in the air to scare them. He
saw them running towards the Sisters Convent. He shot again twice and woke up
the complainant and PW6. He notified
them of the presence of thieves. They
followed him. He asked the complainant
to hold for him the two (2) bullets as he bent to load the gun. He shot once and heard a shot. It was at this juncture that Sister Kamene rang him. He responded. Then he again shot once and the
thugs also shot. He fired another shot and
heard the complainant say he had been shot.
The complainant asked for water and anointing oil. He assisted in taking
the complainant to hospital and made a report to the police.
19.
This being the first
appellate court, I do remind myself of the duty to re-evaluate evidence adduced
in the lower court, then come up with my own conclusions and inference(vide
Okeno vs Republic [1972] E.A. also Njoroge versus Republic [1987] KLR 19.
20.
I have re-evaluated
the evidence as tendered by various witnesses and the respective submissions by
counsels.
21.
A legal point was
raised by counsel for the appellant Mr.
Namisi. Alleging that there was a third hand in this
matter that caused the trial magistrate to disqualify himself from hearing the
matter at a ruling stage having given frightening reasons, the matter was
referred to the High Court whereby it was transferred to another court. He submitted that the magistrate who took
over the matter failed to adhere to the provision of section 200 (3) of the
Criminal Procedure Code.
22.
He argued that the
appellant ought to have been called upon to make an election on how to proceed. He was however, not given that opportunity.
23.
Mrs
Gakobo counsel for the State, however,
argued that the court complied with the provisions of section 200(3) of the
Criminal Procedure Code. Parties chose
to proceed with the matter from where it had reached. In the premises, she urged the court to
re-evaluate the evidence and make a finding thereof.
24.
This case was heard
by the Hon. J. Karanja, Principal Magistrate. After the prosecution closed its case he recused
himself following reasons elaborated in his order. The matter was placed before the High Court
for directions. The case was
transferred to Senior Resident Magistrate’s Court Tawa.
25.
When the matter came
up before Hon. Gichimu, Counsel for
the appellant, Mr. Mwagambo urged
the court to proceed from where the matter had reached. He stated that they did
not wish to have the case heard de novo.
26.
Following the
application made the court stated thus;-
“The court gives direction under section
200(3) of the Criminal Procedure Code that the matter to proceed from where it
had reached. The prosecution having
closed case, the court now reserved the matter for ruling on the 11/4/2012”.
27.
Section 200 (3) of
the Criminal Procedure Code provides as follows ;-
“Where a succeeding magistrate commences the
hearing of proceedings and part of the evidence has been recorded by his
predecessor, the accused person may demand that any witness be re-summoned and
reheard and the succeeding magistrate shall inform the accused person of that
right”.
28.
According to the
provision of the law afroestated, it is mandatory for the succeeding magistrate
to inform the accused of the right to have witnesses re-summoned and be re-heard.
29.
The record clearly
shows that the succeeding magistrate
did not comply with the law. He
did not inform the accused of that right.
The advocate representing the accused then stated that they did not wish
to have the case heard de novo. This
assertion did not mandate the learned magistrate to abdicate his duty of complying
with the law. As correctly pointed out
by counsel for the appellant, failure to comply with the provisions of the law
was fatal to the prosecution’s case. (see Mudoola versus Republic [1996] KLR 616, Ndegwa versus Republic [1985] KLR 534).
30.
This was indeed a mis-trial. I therefore allow the appeal, quash the
conviction and set aside the sentence.
31.
Section 200(4) of the Criminal Procedure Code
Provides thus:-
“when accused person is convicted upon
evidence that was not wholly recorded by
the convicting magistrate the High Court may, if it is of the opinion the
accused person was materially prejudiced thereby, set aside the conviction and
m ay order a new trial,”
32.
The question arising
is whether the appellant was prejudiced and if a retrial should be ordered.
33.
In the case of Sumar
versus Republic [1964] E.A. the Court of Appeal stated that whether or
not a retrial should be ordered depends on the particular facts and
circumstances of each case but should only be made where the interest of
justice require it and where it is not likely to cause an injustice to the
accused person . In the case of Mwangi versus Republic [1983) KLR 520
the Kenya Court of Appeal following the case of Braganza versus Republic [1957] E.A. 152 (C.A.) and Pyaralal
Bassan versus Republic [1960] E.A.
854 stated at page 538 that;-
“…a
retrial should not be ordered unless the appellate court is of the opinion that
on a proper consideration of the admissible, or potentially admissible,
evidence a conviction might result”.
34.
A perusal of the
evidence as summarized by this court, clearly show that the case may result
into a conviction.
35.
On the issue of
prejudice, the appellant was convicted and sentenced to serve seven (7) years imprisonment on 18th June, 2012. On the same day, following the application
made he was released on bail and his sentence stayed. This means he has not served the sentence. He
will therefore suffer no prejudice if a retrial is ordered. In the premises, I
do order that the appellant be retried by another court of competent
jurisdiction. In that regard he will
present himself to Makueni Principal
Magistrate’s Court on the 30th
September 2013 for purpose of a retrial. The case shall be heard on
priority basis.
DATED, SIGNED and DELIVERED
at MACHAKOS this 24TH day of SEPTEMBER 2013.
L.N. MUTENDE
JUDGE
