Case ID:167957

Bernard Otieno Amolo v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Appeal 23 of 2018

Parties:

Bernard Otieno Amolo v Republic

Date Delivered:

25 Nov 2020

Case Class:

Criminal

Court:

High Court at Kisumu

Case Action:

Judgment

Judge(s):

Fred Andago Ochieng

Citation:

Bernard Otieno Amolo v Republic [2020] eKLR

Case History:

Being an appeal against the Judgment and decision of the Chief Magistrate’s Court at Kisumu

(Hon. Rose M. Ndombi RM) dated the 1st March 2017 in Kisumu CMCCR (S.O) No. 15 of 2013

Court Division:

Criminal

County:

Kisumu

History Docket No:

CMCCR (S.O) 15 of 2013

History Magistrate:

Hon. Rose M. Ndombi RM

History County:

Kisumu

Case Outcome:

Appeal allowed

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

HCCRA NO. 23 OF 2018

BERNARD OTIENO AMOLO..............................................................................................APPELLANT

VERSUS

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

[

Being an appeal against the Judgment and decision of the Chief Magistrate’s Court at Kisumu

(Hon. Rose M. Ndombi RM) dated the 1

st

March 2017 in Kisumu CMCCR (S.O) No. 15 of 2013

]

JUDGMENT

The Appellant,

BERNARD OTIENO AMOLLO

, was convicted for the offence of

Defilement

, contrary to

Section 8 (1)

as read with

Section 8 (3)

of the

Sexual Offences Act

.

1. He was then sentenced to 20 years imprisonment.

2. In his appeal he has raised issues which can be summarized as follows:

1. The gaps in the evidence tendered by

the prosecution, raise doubts about its

veracity.

2. The evidence was littered with material

contradictions and inconsistencies.

3. The Burden of Proof was shifted to the

Accused.

4. As the conduct of the Complainant

was inconsistent with his evidence, her

evidence was totally unbelievable.

5. Remote Circumstantial Evidence and

Unfounded Suspicion cannot be the

basis for conviction.

6. The lack of material evidence connecting

the appellant to the offence was fatal to

the prosecution case.

7. The trial court did not give due

consideration to the evidence tendered by

both the prosecution and the defence.

8. The evidence tendered by the prosecution

was at variance with the particulars of

the charge sheet, especially with regard

to the date when the offence was allegedly

committed.

9. Non-compliance with Section 200 (3) of

the Criminal Procedure Code rendered the

trial a nullity.

10. Failure to comply with Article 50 of

the Constitution denied the Appellant a

fair trial.

a. Date when the Offence was committed

3. The charge sheet cited the date as 8

th

December 2013.

4. However, the P3 Form indicated that the offence was committed on 8

th

December 2013.

5. The Appellant submitted that the date when an offence was committed was a very material element of the evidence which the prosecution was duty-bound to prove.

6. The Respondent submitted that;

“…. the variance in the year stated in

the charge sheet, and that which was

mentioned by all prosecution witnesses

in their testimonies did not raise a

material error that occasioned a failure

of justice.”

7. According to the Respondent, the variance can be cured under

Section 382

of the

Criminal Procedure Code

.

8. The Appellant emphasized that

Section 134

of the

Criminal Procedure Code

made it mandatory that a charge or information shall contain a statement of the specific offence with which the accused is charged.

9. He also pointed that it was a requirement of that provision that the charge or information must have particulars which may be necessary for giving reasonable information as to the nature of the offence.

10. In my considered opinion, the fact that the date cited in the charge sheet is different from the date cited by witnesses, as being the date when an offence was committed, is not, of itself, sufficient to render the charge sheet defective.

11. In the case of

JMA Vs REPUBLIC [2009] KLR 671

the court held as follows;

“It was not in all cases in which a

defect detected in the charge would

render a conviction invalid. Section

38C of the Criminal Procedure Code

was meant to cure such an irregularity,

where prejudice to the appellant is not

discernible.”

12. It therefore follows that when a defect does not cause any discernible prejudice to the accused, a conviction based on the said defective charge shall not be reversed or altered on appeal or on revision.

13. Secondly, when the court is called upon to reverse a conviction, sentence, finding or other order, on the basis of an error in the charge sheet, it is imperative to take into account the proviso to

Section 382

of the

Criminal Procedure Code

, which reads as follows;

“Provided that in determining whether

an error, omission or irregularity has

occasioned a failure of justice the court

shall have regard to the question

whether the objection could and should

have been raised in an earlier stage in

the proceedings.”

14. In this case, the particulars of the charge sheet were that the offence was committed on 8

th

December 2013.

15. On the charge sheet, it is indicated that the Appellant was arrested on 26

th

August 2013. In effect, that implies that the Appellant was arrested more than 3 months before the offence was committed.

16. Considering that all the prosecution witnesses testified that the incident giving rise to the charges, had taken place on 8

th

December 2012, it means that there was an error in the charge sheet.

17. Secondly, a perusal of the record of the proceedings reveals that it is Hon. E.A. Obina who was the presiding trial magistrate when the prosecution witnesses testified.

18. After the close of the prosecution case, it is Hon. W. K. Onkunya who delivered the Ruling, through which the Appellant was put to his defence.

19. Thereafter, it is Hon. R. Ndombi who was the presiding trial magistrate when the Appellant testified.

20. Pursuant to the provisions of

Section 200 (3)

of the

Criminal Procedure Code

;

“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 be

re-heard, and the succeeding

magistrate shall inform the accused

person of that right.”

21. A perusal of the record of the proceedings reveals that the succeeding magistrate did not comply with the provisions of

Section 200 (3)

.

22. In the case of

HENRY KAILUTHA NKARICHIA & ANOTHER Vs REPUBLIC, CRIMINAL APPEAL NO. 21 OF 2013

, the Court of Appeal, (sitting at Meru) said;

“The requirement that the court inform

the accused of the right to recall

witnesses, is plain, admitting to no

obscurity. The duty on the court is

mandatory and a failure to comply

with it vitiates the trial since it goes

to the very heart of an accused person’s

right to a fair trial.”

23. The learned Judges of Appeal went on to restate the following words which they uttered in the case of

DAVID KIMANI NJUGUNA V REPUBLIC (NAKURU) CRIMINAL APPEAL NO. 294 OF 2010

.

“All of these decisions declare that the

provisions of Section 200 (3) of the

Criminal Procedure Code are mandatory,

and a succeeding Judge or Magistrate

must inform the accused person directly

and personally of his right to recall

witnesses. It is a right exercisable by

the accused person himself and not

through an advocate, and a Judge or

Magistrate complies with it out of

statutory duty, requiring no application

on the part of an accused person.

Further, failure to comply by the court

always renders the trial a nullity.”

24. On the strength of those authorities, I hereby declare that the non-compliance with the provisions of

Section 200 (3)

of the

Criminal Procedure Code

rendered the proceedings against the Appellant, a nullity.

25. Having declared the proceedings a nullity, I am obliged to give due consideration to whether or not a re-trial ought to be ordered.

26. A re-trial may only be ordered if the court is satisfied that it is in the interests of justice.

27. In effect, it is not in all cases in which proceedings have been declared a nullity that a retrial is ordered.

28. In the case of

DAVID KIMANI NJUGUNA V REPUBLIC

, (above-cited) the Appellant was alleged to have committed the offence on the night of 5

th

and 6

th

February 2007. On 15

th

July 2010, the trial Judge convicted him for Murder.

29. Being dissatisfied with the decision of the trial court, he appealed to the Court of Appeal. In a Judgment delivered on 12

th

November 2015, the Court of Appeal ordered for a retrial, after quashing the initial conviction.

30. By comparison, the period between the time when the offence was allegedly committed herein, and the date of today’s determination, I find that a much shorter period has lapsed in this case.

31. It should be fairly easy to trace the witnesses in the circumstances prevailing in the case.

32. I also find that a close scrutiny of the evidence tendered, suggests that a conviction may result if a retrial was conducted.

33. In my considered opinion, the order for a retrial would not occasion any undue prejudice to the Appellant.

34. Accordingly, I now quash the conviction and set aside the sentence which was handed down by the trial court. However, the Appellant shall not be set free, for now.

35. Instead, I order that the Appellant shall be retried by any magistrate of competent jurisdiction, other than Hon. E.A. Obina and Hon. R. Ndombi.

36. In order to facilitate the expeditious retrial, I order that the Appellant shall first be brought before the learned Chief Magistrate within the next

10 Days

from today.

37. The said Chief Magistrate will assign the court that will hear the case afresh, and the said court shall take plea within7 days from the date when the case has been assigned to it.

DATED, SIGNED

and

DELIVERED

at

KISUMU

This

25

th

day of

November

2020

FRED A. OCHIENG

JUDGE