quashed, fresh trial ordered
By MARTIN MASAI
SUSPENDED Fr John Wambua Makewa’s conviction to a seven-year jail term has finally been quashed and a retrial ordered.
Consequently, Makewa will present himself before the Makueni Principal Magistrate on September 30 2013 to take a new plea. The case will be heard on priority basis, the judge ordered.
It ends his one year honeymoon provided by the inefficiencies of Kenya’s justice system that begun after he was admitted to bond after his conviction.
High Court Judge Lilian Mutende quashed Makewa’s tail sentence terming proceedings before Tawa Senior Resident Magistrate J W Gichimu as a mistrial.
She found that Gichimu acted outside the law by failing to remind Fr Makewa that he had a right to demand the recall of a witness to testify afresh in circumstances where the evidence had been heard by a different magistrate.
Justice Mutende said “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”. She went on “According to the provision of the law aforementioned, it is mandatory for the succeeding magistrate to inform the accused of the right to have witnesses re-summoned and be re-heard. 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”.
Judge Mutende ordered the re-trial saying that her perusal of the evidence ‘’ clearly show that the case may result into a conviction”. She cited Case Law saying “”…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”.(See Full Judgement elsewhere in this paper.