Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Procedure For Production of Exhibits Chris Kasamba Karani V Republic Criminal Appeal No. 26 Of 2008 Tunoi, Bosire & Onyango Otieno, JJ A Court of Appeal at Nakuru May 28, 2010 Reported by Njeri Githang’a Case History (Appeal from a judgment of the High Court of Kenya at Nakuru (Koome & Kimaru, JJ.) dated 24th January, 2008 in H.C.CR.A. NO. 199 OF 2004) The Hon. Mr. Justice P. K. Tunoi Criminal Practice and Procedure- second appeal-appeal against conviction and sentence - appellant convicted of robbery with violence-appeal restricted to matters of law- circumstances under which an appellate court would interfere with the decision of the superior court-Criminal Procedure Code (Cap 75) section 361 Criminal Practice and Procedure-exhibits- procedure for production of exhibits- need for an exhibit to be identified before being produced as evidence-where an exhibit was irregularly produced-where the irregular production of the exhibit did not affect any ingredient of the offence- where the court could still have enter conviction without the weapon being produced as exhibit - whether the appeal could be allowed on that ground in circumstances Criminal Practice and Procedure-trial process-judgment and sentencing-trial court required to receive mitigating circumstances after finding the appellant guilty before proceeding to pronounce sentence- mitigating circumstances on record would be of importance when assessing an appropriate sentence on appeal Evidence-identification evidence-principles that the court had to take into when dealing with evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification The appellant had been charged with robbery with violence contrary to section 296 (2) of the Penal Code. After full trial, he was convicted and was sentenced to death. His appeal to the High Court was dismissed resulting to a second and final appeal to the Court of Appeal. It was argued that the High Court erred in law by sustaining the finding of the subordinate court despite the testimony of PW1 and PW2 being deficient of credibility. It was submitted that there was no proper identification of the appellant. It was further argued that the High Court erred in law by sustaining the finding of the subordinate court despite of the exhibits being produced contrary to the law. Held: 1. By dint of section 361 of the Criminal Procedure Code, the court was enjoined to consider only matters of law. The court could not interfere with the decision of the superior court on facts unless it was demonstrated that; a. the trial court and the first appellate court considered matters they ought not to have considered or b. they failed to consider matters they should have considered or c. looking at the evidence as a whole, they were plainly wrong in their decision, in which case, such omission or commission would be treated as matters of law. Whether PW1 and PW2 were credible witnesses were matters of fact and the court would be very reluctant to interfere with the concurrent findings of the two courts on such matters. 2. The guidelines as regards the principles that the court had to look into when dealing with evidence of identification where the accused claimed it was mistaken, including that of identification by recognition were; a. Where the only evidence against a defendant was evidence of identification, or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction. b. Recognition could be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends were sometimes made. 3. The appellant had been caught red handed and his defence which was rejected after due consideration by the two court’s below was indeed ousted by clear and credible evidence adduced by the prosecution. 4. Exhibit 1 had been irregularly produced. Following the correct procedure in law, PW2 should have identified that exhibit and it should have been marked for identification before PW3 produced it as exhibit. However nothing turned on that irregularity because the production of that exhibit did not affect any ingredient of the offence. The 46 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL offence as charged could have been proved even if the dangerous weapon was not produced as exhibit. So long as the court believed, on evidence before it, that such a weapon existed at the time of the offence, the court could still enter conviction without the weapon being produced as exhibit. 5. (Obiter) The trial court, after finding the appellant guilty and convicting him proceeded to pronounce sentence upon him in the same judgment without receiving any mitigating circumstances from the appellant and the appellant’s antecedents before sentencing him which was not proper. Even where the sentence was mandatory, the trial court needed to record mitigating circumstances before pronouncing the sentence. That was important because, on appeal, the appellate court could be minded to find the appellant guilty of a lesser charge which did not attract a mandatory sentence. In such a situation, mitigating circumstances on record would be of importance when assessing an appropriate sentence. Further, in situations such as when the President considered commuting the sentence, the record was of importance. Appeal dismissed Criminal Practice and Procedure: Reduction of Charge James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 Court of Appeal, at Nyeri May 14, 2010 R. S.C. Omolo, P. N. Waki & D. K. S. Aganyanya, JJ.A Reported by Esther Nyaiyaki Onchana Case History Appeal from a judgment of the High Court of Kenya at Nyeri (Kasango, J.) dated 28th July, 2008 in H.C.Cr.A. 160 of 2007 The Hon. Mr. Justice D. K. S. Aganyanya Criminal Practice and Procedure – appeal – second appeal - matters confined to a second appeal - appellant having been charged with the attempted defilement of a minor – where the first appeal to the superior court of records was dismissed – claims that the appellant’s defence was not considered – whether the evidence adduced was sufficient to sustain the conviction Criminal Practice and Procedure – charge – reduction of charge - charge sheet having been changed from reading “defilement of a minor” to reading “attempted defilement of a minor” – whether this would prejudice the appellant – claims that the language of the court was not stated when the charge was change and there was no interpretation – compliance with section 214 of the Criminal Procedure Code (Cap 75) – court record showing that the appellant pleaded not guilty when the alternate charge was read to him – effect of - Criminal Procedure Code section 214 Constitutional Law - fundamental rights - rights of an accused person - right to a fair trial - right to be brought to court within a reasonable time-appellant being charged with murder - appellant having been arrested on February 7, 2007 and was taken to Court on February 9, 2007 The appellant came to court seeking an appeal against the conviction and sentence on a charge of attempted defilement. Amongst the grounds of appeal adduced by the appellant were that the charge sheet had been substituted without due regard to section 214 of the Criminal Procedure Code, that the proceedings in the court had not been interpreted in a language he could understand, that he had been held beyond the prescribed period of 24 hours before being arraigned in court and that his defence had not been considered hence the case against him had not been proved beyond a reasonable doubt. Held: 1. The new charges were read over to the appellant in the Kikuyu language which he understood and he pleaded not guilty whereupon the trial commenced on the new charges. That was a procedure fully sanctioned under and in compliance of section 214 of the Criminal Procedure Code. There was no substance in that ground of appeal and no prejudice caused to the appellant by reduction of the charge facing him to a lesser one. 2. The trial court was careful to record that the proceedings would be conducted in “English/Kiswahili/Kikuyu” and they would be interpreted in those languages. The trial court was also careful to record the language used by each of the prosecution witnesses and the appellant, and the court clerk who carried out the interpretation. Therefore this ground also failed. Issue 12: April-June 2010 47
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Bench Bulletin - Issue 12 - Kenya Law Reports

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