Martin Makhakha v Republic [2019] eKLR

Martin Makhakha v Republic [2019] eKLR

Case Metadata

Case Number:

Criminal Appeal 48 of 2017

Parties:

Martin Makhakha v Republic

Date Delivered:

17 Oct 2019

Case Class:

Criminal

Court:

Court of Appeal at Eldoret

Case Action:

Judgment

Judge(s):

Erastus Mwaniki Githinji, Hannah Magondi Okwengu, Jamila Mohammed

Citation:

Martin Makhakha v Republic [2019] eKLR

Case History:

An appeal against the judgment of the High Court of Kenya at Bungoma (Ali Aroni J,) dated 16th May, 2016 in H.C.C.R.A. No. 46 of 2016

Court Division:

Criminal

County:

Bungoma

History Docket No:

H.C.C.R.A. No. 46 of 2016

History Judges:

Abida Ali-Aroni

Case Summary:

An accused person has no right of appeal against a ruling of the trial court on having a case to answer in a criminal trial

Martin Makhakha v Republic [2019] eKLR

Criminal Appeal No. 48 of 2017

Court of Appeal at Eldoret

E M Githinji, H M Okwengu & J Mohammed, JJA

October 17, 2019.

Reported by Kakai Toili

Constitutional Law

– fundamental rights and freedoms – rights of accused persons – rights of accused persons during criminal trials - explaining of an accused person’s rights at the close of the prosecution case - what were the rights to be explained to an accused person at the close of the prosecution case and what was their role – Criminal Procedure Code, section 211

Appeals

– criminal appeals - matters to be determined – matters of law - what were the elements of determining a matter of law in an appeal - whether an accused person could appeal against a ruling of a trial court on having a case to answer - Criminal Procedure Code, sections 361 and 347

Brief facts

The appellant was charged at the trial court with three counts of assault and one charge of creating a disturbance in a manner likely to cause a breach of the peace. The appellant pleaded not guilty to the charges. The trial court in its ruling found that the prosecution had established a

prima facie

case against the appellant who should be placed on his defence. Aggrieved by that decision, the appellant filed an appeal to the High Court on the grounds that the evidence before the trial court did not warrant him to be put on his defence among others. The High Court agreed with the trial court that the appellant had a case to answer and found no reason to interfere with the trial court’s decision. Aggrieved by the High Court’s decision, the appellant filed the instant appeal.

Issues

Whether an accused person could appeal against a ruling of a trial court on having a case to answer.

What were the elements of determining a matter of law in a criminal appeal?

What were the rights to be explained to an accused person at the close of the prosecution case and what was their role?

Held

By dint of section 361 of the Criminal Procedure Code (CPC), the mandate of the court was to consider only issues of law. The 3 elements of the phrase matters of law were characterized as follows;

the technical element: involving the interpretation of a constitutional or statutory provision;

the practical element: involving the application of the law to a set of facts or evidence on record; and

the evidentiary element: involving the evaluation of the conclusions of a trial court on the basis of the evidence on record.

The basis of putting an accused on his defence was founded on the prosecution establishing a

prima facie

case. It could not be easy to define what was meant by a

prima facie

case, but at least it had to mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation was offered by the defence.

The standard of establishing a case beyond reasonable doubt after the close of the prosecution’s case was not required in determining whether or not the accused had a case to answer. That could only be done after an accused had been called to tender a defence. Only then could the court critically examine the evidence tendered under a microscope. Without delving into the merits of the case, there was substantial evidence to warrant the accused being placed on his defence.

Section 211 of the CPC required that the rights of an accused person be explained to him at the close of the prosecution case and when he was being put on his defence. Those rights were;

the right of remaining silent and saying nothing;

the right to make an unsworn statement from the dock in which event the accused was not liable to cross examination by the prosecution;

the right to give sworn evidence from the witness box in which event the accused became liable to cross examination by the prosecution if the prosecution wished; and

the right to call witnesses if the accused so wished.

The rights under section 211 of the CPC were crucial rights of an accused person in a trial that were meant to ensure fair trial. When they had been explained to an accused, he responded by electing to proceed as he wished. His response ought to be taken down and ought to appear on the court record. The accused was then called upon to proceed in the way he had elected.

The record indicated that the appellant was represented by counsel who filed written submissions at the close of the prosecution case maintaining that the appellant had no case to answer. Subsequently the trial court delivered his ruling and on the same day the appellant indicated his intention to appeal against the said ruling. There was no failure of justice, as the trial court did not proceed with the defence but ordered that since the appellant had filed an appeal, the court would await the outcome of the appeal. The appellant’s complaint that his rights under section 211 of the CPC were violated lacked merit as it was premature for the court to comply with section 211, the defence hearing having been held in abeyance to await his appeal.

A determination that there was a case to answer did not and could not mean that the court would inevitably convict. It was simply an opportunity for the accused to give his side of the story and poke holes in the prosecution’s case. Under section 347(1)(a) of the CPC, a right of appeal from a subordinate court to the High Court only arose where an accused person had been convicted. Therefore, the appellant had no right of appeal against the interlocutory ruling made by the trial court. His appeal before the High Court was therefore incompetent.

Appeal dismissed; Kimilili Criminal Case No 581 of 2012 against the appellant to proceed at the trial court before the same magistrate or any other magistrate under section 200 of the CPC.

History County:

Bungoma

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: GITHINJI, OKWENGU & J. MOHAMMED, JJ.A)

CRIMINAL APPEAL NO. 48 OF 2017

BETWEEN

MARTIN MAKHAKHA...........................................................APPELLANT

AND

REPUBLIC.............................................................................RESPONDENT

(An appeal against the judgment of the High Court of Kenya at Bungoma

(

Ali Aroni J

,)

dated 16

th

May, 2016 in

H.C.C.R.A. No. 46 of 2016)

JUDGMENT OF THE COURT

BACKGROUND

1. This is a second appeal by

Martin Makhakha

(the appellant) who was charged by the Senior Resident Magistrate’s Court at Kimilili with three counts assault contrary to

Section 251

of the

Penal Code

and one charge of creating a disturbance in a manner likely to cause a breach of the peace contrary to

section 95 (1) (b)

of the

Penal Code

.

2. On the 1

st

count, the particulars of the offence were that on the 4

th

day of April, 2012 at Makunga Primary School in Bungoma County, the appellant unlawfully assaulted

Emily Walubengo

thereby occasioning her actual bodily harm; on the 2

nd

count, that on the same day and place, he assaulted Isaac Zacharia thereby occasioning him actual bodily harm; on the 3

rd

count, that on the same date and place, he unlawfully assaulted

Phillis Simiyu

thereby occasioning her actual bodily harm.

3. On the charge of creating disturbance, the particulars of the offence were that on the 4

th

day of April, 2012, at the same place and time, he created a disturbance in a manner likely to cause a breach of the peace by chasing pupils at

Makunga Primary School

while armed with a whip and a walking stick.

4. The appellant pleaded not guilty to the charges. The prosecution closed its case after calling seven (7) witnesses. In its ruling, dated 10

th

March 2015, the trial court stated as follows:-

“The prosecution in support of their case called 7 witnesses and at the close of the prosecution’s case I find that the prosecution has established a prima facie case against the appellant who shall be placed on his defence.”

5. Aggrieved by that decision, the appellant filed an appeal to the High Court on the grounds that the evidence before the trial court does not warrant the appellant to be put on his defence as no evidence supports the case; that the case be placed before another court for fresh trial as the trial magistrate was biased as he was the complainant’s neighbor; that the evidence before the trial court is false; that the P3 form was filed by an unqualified person; and that the trial court failed to record questions and answers and the appellant is innocent.

6. The High Court heard the appeal, and after re-appraising the evidence adduced before the trial court, noted that the issue of bias and the issue regarding the P3 form were not raised before the trial court. The learned Judge agreed with the trial court that the appellant had a case to answer and found no reason to interfere with the trial court’s decision.

7. The learned Judge took judicial notice of the fact that

Mr. Sagero

the Senior Resident Magistrate who delivered the impugned ruling was no longer at the station which was hearing the case against the appellant. Accordingly, the learned judge remitted the file back to Kimilili for further hearing.

8. Aggrieved by that decision, the appellant filed this second appeal raising various grounds: that the High Court arrived at its decision to put him on his defence based on personal opinion rather than on the evidence before the court; that in doing so, the appellant was denied his fundamental rights to a fair trial; that based on the evidence before the court, the prosecution has not established a prima facie case; and that the evidence adduced does not warrant a defence.

SUBMISSIONS

9. When the appeal came up for hearing, the appellant was acting in person while the State was represented by

Mr. Kwame Chacha

, the learned Prosecution Counsel.

10. The appellant relied on the grounds in his Memorandum of Appeal filed on 21

st

June, 2016. He submitted that the injuries sustained by the complainants were not assessed to the required standard; that the person who signed the P3 form is not the person who produced it; that none of the witnesses witnessed the appellant assaulting the complainants; and that all the witness statements are contradictory

11.

Mr. Chacha

, opposed the appeal for lack of merit. He submitted that all the issues raised by the appellant were issues of fact and evidence and not matters of law; that this Court’s jurisdiction on a second appeal are only on issues of law; that Section 211 of the Criminal Procedure Code (CPC) provides that a court will put an accused on his defence when a case is made out against him; that in this case there was sufficient evidence adduced by the prosecution to put the accused on his defence; that all 3 complainant’s testified; that their teachers testified as did the doctor who examined and treated the complainants after the assault; that there were eye witnesses to the assault; that this appeal is frivolous and an abuse of the court process intended to delay the hearing of the case.

DETERMINATION

12. This being a second appeal, by dint of

section 361

of the Criminal Procedure Code, our mandate is to consider only issues of law. In

Martin Nyongesa Wanyonyi v Republic

Criminal Appeal 661 of 2010

, this Court stated as follows:

“

It is trite law that in a second appeal the appellate court will not normally interfere with the concurrent findings of fact by the two courts below unless it is apparent that on recorded evidence no reasonable tribunal could have reached that conclusion – See

M’Riungu V R

[1983] KLR 455; and

Karingo V R

[1982] KLR 213. It is also trite law that an appellate court will not normally interfere with the findings by the trial court which are based on credibility of witnesses unless it be shown that no reasonable court could have made such findings – see

Republic v Oyier

[1985] KLR 353.”

13. As stated by the Court in

Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others

[2014] eKLR

in

Supreme Court Petition No. 2B of 2014

the three elements of the phrase “matters of law” are characterized as follows:

“a. the technical element: involving the interpretation of a constitutional or statutory provision;

b. the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;

c. the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.”

14. The basis of putting an accused on his defence is founded on the prosecution establishing a prima facie case. The standard of proof as to whether the prosecution has established a prima facie case has been laid down in the case of

Ramanlal Trambaklal Bhatt -Vs- Republic

(1957) E.A. 332

and stated with approval by this Court in the case of

Anthony Njue Njeru v Republic

[2006] eKLR

Criminal Appeal 77 of 2006

as follows: -

“It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

15. It is clear that the standard of establishing a case beyond reasonable doubt after the close of the prosecution’s case is not required in determining whether or not the accused has a case to answer. This can only be done after an accused has been called to tender a defence. Only then can the court critically examine the evidence tendered under a microscope.

16. We have evaluated the evidence adduced by the prosecution witnesses and reviewed the exhibits tendered. Without delving into the merits of the case, we find that there is substantial evidence to warrant the accused being placed on his defence.

17. The High Court in its judgment reviewed the evidence before it and applied the

prima facie

test to the evidence on record stating:

“I have considered the prosecution evidence and the record generally, I note that the issue of bias was not raised before the trial court nor the issues on the P3 forms. Having said the above, considering the evidence on record I am in agreement with the decision of the trial court and on my part I would have placed the appellant on his defence and therefore see no reason to interfere with the said decision

.”

18.

Section 211

of the

Criminal Procedure Code

requires that the rights of an accused person be explained to him at the close of the prosecution case and when he is being put on his defence. These rights are:

(a) The right of remaining silent and saying nothing.

(b) The right to make an unsworn statement from the dock in which event the accused is not liable to cross examination by the prosecution.

(c) The right to give sworn evidence from the witness box in which event the accused becomes liable to cross examination by the prosecution if the prosecution wishes.

(d) The right to call witnesses if the accused so wishes.

19. The rights under section 211 of the CPC are crucial rights of an accused person in a trial that are meant to ensure fair trial. When they have been explained to an accused, he responds by electing to proceed as he wishes. His response ought to be taken down and ought to appear on the court record. The accused is then called upon to proceed in the way he has elected. The record before us indicates that the appellant was represented by counsel who filed written submissions at the close of the prosecution case maintaining that the appellant had no case to answer. Subsequently the trial magistrate delivered his ruling on 10

th

March 2015, in which he ruled that the prosecution had established a prima facie case against the appellant and that the appellant would be put on his defence. On the same day the appellant indicated his intention to appeal against the trial court’s ruling and sought typed proceedings, and an order was duly made for him to be supplied with typed proceedings.

20. We are therefore satisfied that that there was no failure of justice, as the trial court did not proceed with the defence but ordered that since the appellant had filed an appeal the court would await the outcome of the appeal. The appellant’s complaint that his rights under section 211 of the CPC were violated lacks merit as it was premature for the court to comply with section 211 of the CPC the defence hearing having been held in abeyance to await his appeal.

21. Finally, we turn to the question whether there is a right of appeal at the close of the prosecution’s case.

22. In

Thomas Patrick Gilbert Cholmondeley v Republic

[2008] eKLR

Criminal Appeal No. 116 Of 2007

(Cholmondeley case)

this Court gave a detailed explanation why it allowed an interlocutory appeal as follows:

“

In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal. But the basis of this appeal, as far as we are concerned is that the learned Judge made an order in the course of the trial which violated the appellant’s fundamental rights guaranteed by section 77 of the Constitution.

The Court went on to caution against an unfettered right of appeal as follows:

“…

We would, nevertheless, sound a caution against the exercise of the undoubted right of appeal under section 84 (7) of the Constitution. First the fact that a trial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental right, falls by the wayside and causes no harm to such an accused. The advantage of that course is that the long delay in the hearing of the charge is avoided and in the event of a conviction the matter can be raised on appeal once and for all… The trial before the learned judge will, however, resume and go on to its logical conclusion. We think it is against public policy that criminal trials should be held up in this fashion and it is our hope that lawyers practising at the criminal bar will appropriately advise their clients so as to avoid such unnecessary delays. We would add that in future if such appeals are brought the Court may well order that the hearing of the appeal be stayed pending the conclusion of the trial in the High Court.”

23. As stated by the

Cholmondeley case

above, a determination that there is a case to answer does not and cannot mean that the Judge will inevitably convict. It is simply an opportunity for the accused to give his side of the story and poke holes in the prosecution’s case. Under section 347(1)(a) of the Criminal Procedure Code, a right of appeal from a subordinate court to the High Court only arises where an accused person has been convicted. Therefore, the appellant had no right of appeal against the interlocutory ruling made by the trial magistrate. His appeal before the High Court was therefore incompetent.

24. For the foregoing reasons, we find that this appeal must fail, and we hereby dismiss it. Accordingly, we direct that

Kimilili Criminal Case No 581 of 2012

against the appellant shall proceed at the trial court before the same magistrate or any other magistrate under section 200 of the CPC.

25. Those shall be the orders of the Court.

Dated and delivered at Eldoret this 17

th

day of October, 2019.

E. M. GITHINJI

JUDGE OF APPEAL

H. M. OKWENGU

JUDGE OF APPEAL

J. MOHAMMED

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR