Republic v Chapia alias Gabriel Bukachi Chapia (Anti-Corruption Case E041 of 2020) [2024] KEMC 39 (KLR) (Anti-Corruption and Economic Crimes) (30 September 2024) (Ruling)
Neutral citation:
[2024] KEMC 39 (KLR)
Republic of Kenya
Anti-Corruption Case E041 of 2020
CN Ondieki, PM
September 30, 2024
Between
Republic
Prosecutor
and
Gabreil Bukachi Chapia alias Gabriel Bukachi Chapia
Accused
Ruling
PART I: INTRODUCTION
1.A demand to recall and rehear witnesses under section 200 of the Criminal Procedure Code (hereinafter “the CPC”) comes with polycentric forces which fundamentally require a delicate balancing act. Provided no rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject (the Accused) granted that he is the most sacrosanct individual in the system of our legal administration.1
2.On 6th November 2020, the Accused/Applicant (hereinafter “the Applicant”) was arraigned in Court and charged with 16 diverse counts of offences as follows:i.three counts of forgery contrary to section 345 read with section 349 of the Penal Code;ii.five counts of uttering a false document contrary to section 353 read with section 349 of the Penal Code;iii.one count of providing false information to a public entity contrary to section 46(1)(d) as read with section 46(2) of the Leadership and Integrity Act, 2012;iv.one count of providing false information to Ethics and Anti-Corruption Commission contrary to section 46(1)(d) as read with section 46(2) of the Leadership and Integrity Act, 2012;v.three counts of giving false information to a person employed in public service contrary to section 129(a) of the Penal Code; andvi.three counts of fraudulent acquisition of public property contrary to section 45(1)(a) read with section 48 of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003.
3.Fourteen witnesses were heard by my predecessor Hon. Wakumile, between 23rd November 2021 and 18th July 2023. This far, the prosecution is one witness away - the Investigating Officer - from closing the prosecutor’s case.
4.Occasioned by transfer of my learned brother from this Court, on 24th September 2024, I succeeded my brother and effectively took over among others, this part-heard matter.
5.Part of the evidence having been recorded by my predecessor, this Court was obligated to inform and it did accordingly inform the Accused that under section 200(3) of the CPC, he has a right to be informed that he is at liberty to demand that a witness who has already been heard, be recalled and reheard by this Court.
Part ii: The Accused’s Demand To Recall And Rehear All Witnesses Under Section 200(3) Of The Criminal Procedure Code
6.In response to the said information, the Accused expressed his desire for hearing of this matter de novo and demand for recall of all the 14 witnesses who were heard by my learned brother. In his concise, meticulous, and succinct oral Submissions buttressing the Accused's said demand, Learned Counsel Mr. Simiyu, representing the Accused advanced two grounds.
7.First, Mr. Simiyu argues that since I did not have the benefit of seeing the witnesses while testifying, I was deprived of the opportunity to observe their demeanour. Learned Counsel reasons that having not observed their demeanor, the Accused is likely to suffer extreme prejudice since that failure offends the Accused’s right to fair trial. For the Accused, Mr. Simiyu is worried that even typed proceedings will not fill this void.
8.Second, Mr. Simiyu contended that three witnesses testified before the Accused secured services of an advocate. Counsel reasons that although the three witnesses were recalled for cross-examination only, counsel did not get the opportunity to challenge the documents they produced since they “were already put on the record”. Counsel reasons that by recalling the witnesses, the state will suffer no prejudice and if any, the prejudice the Accused will suffer is higher than that the state is likely to suffer.
Part Iii: The State’s Response To The Demand
9.The application was opposed by the state through Learned Counsel representing the Republic, Mr. Momanyi. Learned Counsel argues that the recall contemplated under section 200(3) is not couched in mandatory terms. Mr. Momanyi submits that the Accused is obligated to advance cogent reasons in support of the demand and in this, the Accused failed to discharge this burden.
10.It is submitted that the Accused had an opportunity to challenge evidence which was adduced by the state, in cross-examination of the state witnesses. It is submitted that the three witnesses who were heard before counsel came on record were recalled and counsel had the opportunity to cross-examine them and the right to fair trial was thus not offended.
11.Finally, Mr. Momanyi reasons that since the matter has been pending since 2020, staring de novo will occasion unreasonable delay.
Part Iv: The Accused’s Rejoinder
12.In his rejoinder, Learned Counsel Mr. Simiyu, rehashed the substance of the application. Mr. Simiyu submitted that it was not the intention of the Accused to delay the matter and that in any event, the mater can be heard on a priority basis.
Part V: Questions For Determination
13.Gleaning from the application and the response thereto, there is only one question to determine whether the Accused has made a case for hearing de novo by recalling and rehearing all the 14 witnesses who were heard by Hon. Wakumile.
Part Vi: Analysis Of The Law; Examination Of Facts; Evaluation Of Evidence And Determination
14.Section 200 of the CPC provides as follows: “(1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may — (a) deliver a judgment that has been written and signed but not delivered by his predecessor; or (b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial. (2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment. (3) 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 resummoned and reheard and the succeeding magistrate shall inform the Accused person of that right. (4) Where an 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 that the Accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.” {Emphasis supplied}
15.Relevant to the exclusive circumstances of this case, is Section 200(3) of the CPC. The purpose of section 200(3) is to safeguard the right of the Accused to fair hearing. See the Court of Appeal decision in Erick Omondi vs. Republic [2007] eKLR (hereinafter “the Omondi case”), where Bosire, O’Kubasu & Onyango, JJA (as they then were) explained that “That provision was enacted to safeguard the right of an Accused person to a fair hearing.” See also Raphael vs. R [1969] EA 544 (hereinafter “the Raphael case”), per Bramble J, et alia.
16.While enunciating principles to govern section 200 of the CPC and in depicting the fatal legal effect of non-compliance thereof, in Ndegwa vs. Republic[1985] eKLR (hereinafter “the Ndegwa case”), Madan, Kneller & Nyarangi, JJA (as they then were) made the following rendition: “No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject since he is the most sacrosanct individual in the system of our legal administration.”
17.It is thus obligatory upon the successor Magistrate to inform the Accused of his right to demand that a witness who has already been heard be recalled and reheard. Since the duty to inform the Accused is couched in mandatory terms, section 200 of the CPC should be scrupulously observed and complied by the successor, failing which the proceedings will be rendered a nullity. The Omondi case, best typifies the legal effect of failure to scrupulously observe the section. In that case, the Court of Appeal held that “While we agree that the succeeding magistrate in the case before us was aware and did to some degree comply with the provisions of section 200, above, the wording of sub-section (3) thereof demands of the succeeding magistrate that he scrupulously observe and comply with its requirements. The highlighted part of that sub-section is couched in mandatory terms. It states “shall inform the Accused person of that right.” Which right? The right to resummon and examine witnesses who had previously testified. There is wisdom in that provision as the succeeding magistrate neither heard nor saw those witnesses testify. If the Accused person is informed of this right, he might wish the succeeding magistrate to form his own impression about their demeanor. Subsection (4) of that section is instructive. It provides that on first appeal, if the High Court is of the opinion that the Accused person was materially prejudiced by the non-compliance with the section it may set aside, the conviction “ and may order a retrial” Prejudice may be discerned from the nature and circumstances of the case. Our perusal of the lower Court record shows that the trial magistrate did not specifically inform the appellant of his right to demand the recall of witnesses who had already testified… we are of the considered view that as the record does not show that the appellant was explained of his right to demand the recall of witnesses who had already testified we cannot say there was full compliance with the requirements of section 200 Criminal Procedure Code. That provision was enacted to safeguard the right of an Accused person to a fair hearing. The section, in our view, sets out the conditions which a succeeding magistrate has to comply with as a prerequisite to taking over the conduct of the case. He has to demonstratively show he has done so and a failure to comply denies him the jurisdiction to handle the case, and whatever he does in breach, renders those proceedings a nullity. Section 382 Criminal Procedure Code cannot be properly invoked to cure that irregularity, which in our view is of a fundamental nature. In the result, we think that the succeeding magistrate in this case did not sufficiently comply with section 200, Criminal Procedure Code. The appellant’s conviction was therefore a nullity…” See also Raphael vs. R [1969] EA 544, per Bramble J.; Urita Njeri Muchiri vs. Republic [2013] eKLR, per Visram, Koome & Odek, JJA (as they then were); Joanes Oketch Ongoro vs. Republic [2014] eKLR, per Waki, JA (as he then was), Makhandia & Sichale, JJA; Richard Charo Mole vs. Republic [2010] eKLR, per Bosire, Githinji & Waki, JJA (as they then were);
18.Whereas it is mandatory to inform the Accused of the said right to demand recall and rehearing of the witnesses already heard, in no way is it mandatory to grant the demand to recall and rehear the witnesses who have already been heard by the predecessor. Each demand should be considered on its own merits. See Jones Makau Ndolo vs. Republic [2014] eKLR, per Githinji, JA (as he then was), Karanja & Mohammed, JJA. Concenting this question, in King'oo vs. Republic (Criminal Appeal 120 of 2022) [2023] KECA 1328 (KLR) (10 November 2023) (Judgment), where the Court of Appeal (Kairu, Lessit & Odunga, JJA) held as follows as: “28 … Regarding the issue of recall of witnesses upon the trial magistrate leaving service, we must emphasise that what the law provides is the right to apply for the recall of the witness as opposed to the right to recall the witness. The ultimate decision whether or not to recall a witness remains with the trial Court and unless it is shown that the decision was wrongly arrived at the appellate Court would not interfere with that decision…”
19.Such a demand calls for a delicate balancing act between the rights of the Accused, the constitutional obligation of the Court to dispense justice without undue delay, public interest and public policy. The demand should therefore be sound, precise, individualized, cogent and justifiable.
20.What then are the principles which govern such a demand? First, whether the trial period was short or protracted. Second, whether the subject witnesses are available or not. The Court may consider granting the demand if the trial period was short, provided the subject witnesses are available. It follows that the Court may consider declining the demand if the trial period was protracted and certainly, if witnesses are unavailable. See the Ndegwa case, where Madan, Kneller & Nyarangi, JJA (as they then were) laid the following principles to govern section 200 of the CPC: “Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice, if a succeeding magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial. Section 200 is not to be invoked where, as seemingly in the instant case, such a half-heard trial is a short one, it could be conveniently started de novo because the prosecution witnesses are still available locally, and passage of time when the trial first commenced and another magistrate taking over almost midway, is so short so as not to cause or produce any accountable loss of memory on their part, whether actual, presumed or pretended, to the prejudice of either the prosecution or the Accused.”
21.First, it is instructive to highlight that the nature of this case turns on documentary evidence. While I agree with Learned Counsel that it is crucial for the trial magistrate to observe and form an independent impression of the demeanor of a witness, in a trial heavily contingent on documentary evidence as opposed to verbal evidence, demeanor plays a peripheral role in assessing the probative value, authenticity, verifiability, credibility and reliability of the documentary evidence exhibited. Many more yardsticks outside demeanor are available to the Accused and the Court in attaining the same, including but not limited to source and official custody of the documents in their relation to the witnesses, material inconsistencies of a witness (as opposed to discrepancies), unswerving refractory tendencies, identification or lack thereof, corroboration or lack thereof, et alia.
22.Second, regarding the question of both the period the witnesses were heard and number of witnesses factors, it is instructive to underscore that by the time I took over, trial had been running 5 donkey years out of which the said 14 witnesses were heard for a period spanning 3 years (between 23rd November 2021 and 18th July 2023). In a matter which bears similar hallmarks, where trial had spanned 5 years, it was deemed a protracted period and held that it would be injudicious to begin de novo a trial which had protracted for such a period, notwithstanding the fact that all witnesses in that matter had been heard by the predecessor and notwithstanding further the fact that all the witnesses were available locally. A judicial opinion was expressed that taking that route was likely to prejudice the prosecution on account of inter alia memory lapses of the witnesses. See James Omari Nyabuto & another vs. Republic [2009] eKLR (hereinafter “the Nyabuto case”), where the Court of Appeal (Tunoi, Onyango & Aganyanya, JJA, as they then were), adopted and applied the principles which were laid down in the Ndegwa case, and rendered themselves as follows: “In this case the trial Judge passed on after having fully recorded evidence from 7 witnesses and from the two appellants and had in fact summed up to the assessors. The trial, moreover, was not a short one but a protracted one which had taken over 5 years to conclude. The passage of time militated against the trial being started de novo. Though prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution, and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants.”
23.Third, counsel suggested that perhaps the only avenue available to challenge documentary evidence is to prevent chances of finding its way into the record and that cross-examination could not attain this. This, certainly, cannot be said to be a correct reflection of the law. Finding its way into the record is one of the four stages of admissibility of documentary evidence namely filing; identification; production; and finally, determination of its probative value notably the question whether it proves or disproves the fact in issue. It follows that mere admission of a document in evidence as an exhibit, is not and should not be confused with determination of its probative value. The last stage practically occurs at either the ruling or judgment stage. In Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others [2015] eKLR, the Court of Appeal (Visram, Mwilu & Odek, JJA, as they then were) discussed at length, principles which govern production of documentary evidence and laid down the following principles: “18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the Court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the Court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the Court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record. 19. The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the Court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification. 20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the Court to have the document produced as an exhibit and be part of the Court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.” See also Republic vs. Mark Lloyd Steveson [2016] eKLR, where Prof. Ngugi, J. laid down four stages of authentication of proposed real and documentary evidence as a precondition for admission in a trial as follows: “38. To avoid confusion, it is important to set out where authentication fits into the evidence map. The admission and consideration of tangible exhibit in evidence follows the following steps: a. First, the Court determines if the proposed evidence is relevant. Here, the Court simply determines the probative value of the proposed evidence: whether the proposed evidence has tendency to make the existence of any fact that is of consequence to the determination of a fact in issue more or less probably that it would be without the evidence. If the proposed evidence passes the Relevancy Test, it proceeds to the second step. b. Second, in the case of tangible exhibits (like the two documents in this case), the Proponent for the evidence authenticates the proposed piece of evidence that is the Proponent must prove that the evidence is what the proponent claims it to be. The Court only proceeds to the third step if the proposed evidence passes muster under the Authentication Test. It is important to explain here that the term “authentication” though the technically correct word which is widely used for this step can be misleading. In fact, what is meant by “authentication” at this stage is merely that a proper foundation for admission of the document or exhibit has been laid. It does not, at all, mean that the exhibit must now be accepted and believed. The Trial Court, as the fact finder, must ultimately weigh (in step 4 below) the admitted evidence in light of all the circumstances. The weighing can only happen after the foundation for the proposed evidence has been laid. c. Third, the Court, at the urging of the parties or on its own motion, determines if there is any other rule of evidence that excludes the proposed evidence. Here is the Court considers whether the evidence is excluded by the Constitution (for example the right against self-incrimination discussed above, prohibition against hearsay evidence or whether the proposed evidence would lead to unfair prejudice with its probative value substantially outweighed by the danger of unfair prejudice. If the proposed evidence survives this Exclusion Test, then the proposed evidence is admitted into evidence and the Court proceeds to the fourth step. d. Fourth, the Court considers the weight to be accorded to the admitted evidence. At this stage the opponent may still bring to the Court’s attention evidence opposing authenticity of the evidence, thereby allowing the Court to give less weight to the evidence or no weight at all.” It follows that the worry of a party, therefore, should not be whether a document is on record or not but the probative value of the document. Further, the Accused had, has and will always have sufficient opportunity to attack the documentary exhibits including but not limited to countering the ones on record with documentary evidence, cross-examination, et alia.
24.Fourth, Learned Counsel suggested that although the Accused was given a chance to recall three witnesses for cross-examination, since the documents had already been produced as exhibits, he was not able to challenge the documentary evidence by way of cross-examination. Again, this submission is not an accurate reflection of the law and principles which govern cross-examination. What purpose does cross-examination serve? Before I jump into the depths of the answer, it would perhaps pay to highlight that apart from wit, a veritable art of cross-examination is other weapon every advocate should ordinarily walk around with. But both are sharpened, over time, in trial advocacy. Actually, according to John Henry Wigmore, in his Book ‘Evidence in Trials at Common Law’ 3rd Ed., at page 1367: “Cross-examination is the greatest legal engine ever invented for the discovery of the truth.” Back to the question. First, cross-examination is used to extract or bring out desirable facts in favour of the party cross-examining, around facts deliberately suppressed, or omitted or misrepresented by the witness testifying in examination-in-chief. Second, it is used to impeach the credit-worthiness of a witness by exposing errors, contradictions, omissions and improbabilities. Third, it is used to test the veracity of a witness’s testimony. In Law Society of Kenya vs. Faith Waigwa & 8 others [2015] eKLR, J.K. Sergon, J. had occasion to discuss the rationale and by extension the purpose served by cross-examination. His Lordship had this to say: “9. Let me once more restate the rationale of cross-examination of witnesses. First, it is a mechanism which is used to bring out desirable facts to modify or clarify or to establish the cross-examiner’s case. In other words, cross-examination is meant to extract the qualifying facts or circumstances left out by a witness in a testimony given in examination in chief. Secondly, the exercise of cross-examination is intended to impeach the credit worthiness of a witness. In cross-examination a witness may be asked questions tending for example to expose the errors, contradictions, omissions and improbabilities. In the process, the veracity of a witness’s averments is tested. Thirdly, the exercise of cross-examination in some cases gives the Court an early chance to get the glimpse of what to expect during the substantive hearing…” See also Khen Kharis Mburu & another vs. James Karong Ng’ang’a & another [2021] eKLR, per Mwita, J.: Republic vs. Hassan Randu Nzioka [2019] eKLR, per Nyakundi, J., et alia. It follows that documentary exhibits can sufficiently so, be challenged in cross-examination and this, in no way denies the Accused his indefeasible right guaranteed by Article 50 (2) (k) of the Constitution to challenge evidence.
25.Fifth and last, but not least, I turn to the precautionary principle. One of the scintillating reads on the sway entrenched in the practice of considering absurd hypothetical scenarios before taking a determinative step, is a book titled 'What if?' authored by Randall Munroe. The author highlights the need for child-like curiosity of the world around us - rising to the heights bordering the outlandish - sufficient enough to spark useful insights and reveal priceless discoveries, using provocative absurd hypothetical scenarios. Although I must acknowledge that the book is not a legal context per se, the message has certainly a universal application. And in this case, I pose to ask an absurdity: what if it is confirmed today that the witnesses are available, but tomorrow, the appointed hearing date, it unfortunately communicated that they are no longer available in absolute terms, after the testimonies of the 14 witnesses have been rendered a nullity? Sounds outlandish, right? But that's the real world around us. It is on this premise that the precautionary principle is sustained. It’s irrefutable that starting de novo in the unique circumstances of this case is tantamount to taking a huge leap of faith considering the protracted period of hearing the 14 witnesses combined with the huge number of witnesses. Although Learned Counsel for the Accused expressed a view that it is possible to recall the 14 witnesses and direct hearing on a priority basis, seemingly, it may have been let to slip from his otherwise veritable memory that by dint of the principle of balanced scales of justice, this Court is charged with the responsibility of equally expediting all cases pending before it. Compounded by the fact that if all matters pending before me – a substantial number of which are partly heard and a majority of which this Court has not given directions under section 200 of the CPC were to begin de novo, and in the event this court is persuaded to give similar directions of hearing them on priority basis – this Court shall have unwittingly stirred a catastrophe of unprecedented proportions. Proceeding on this footing, it would be reasonable to estimate that if this trial was to start de novo, the 14 witnesses are likely to heard for a similar span of time to reach the 14th witness (of 3 years). In this connection, since the effect of the order is nullify the evidence which was tendered earlier, compounded further by the fact that no one knows or can possibly anticipate or even predict what tomorrow or even the next hour presents, taking that direction will certainly be a huge leap of faith. It explains why it behooves this Court to, continually, remind and caution itself against tomorrow, even in circumstances where it is persuaded that a witness is or witnesses are available locally today, since availability now is not a guarantee for availability the next hour or tomorrow.
26.The sweetness of justice lies in the swift conclusion of the case, so aptly said Madan JJA (as he then was) in the Ndegwa case. Similarly, in the Nyabuto case, faced with a situation where the decision of the trial not to begin de novo under the same section was questioned at the Court of Appeal, the Court of Appeal was satisfied that the trial Court did the best in striking a balance between the right of the Accused to recall and the obligation of the Court to conclude the case without undue delay and Tunoi, Onyango & Aganyanya, JJA (as they then were) had this to say: “Musinga, J in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded. We find no merit on this ground of appeal. We accordingly reject it.”
27.Consequently, having found that the right of the Accused to fair trial will not be offended at all and having further found no prejudice will possibly be suffered by the Accused if the 14 witnesses are not recalled and reheard, my mind is persuaded that it will serve the best interest of fair administration of justice, if this demand is disallowed which I hereby do, to allow the matter proceed from where my learned brother stopped.
Part Vii: Disposition
28.Wherefore this Court declines to grant the demand by the Accused all the witnesses who had been heard by Hon. Wakumile be recalled and reheard.
29.Now, therefore, this Court directs that trial of the matter continues from where Hon. Wakumile stopped.
VIRTUALLY DELIVERED, SIGNED AND DATED IN OPEN COURT AT MILIMANI ANTI-CORRUPTION COURT THIS 30TH DAY OF SEPTEMBER,2024……………..…………C.N. ONDIEKI PRINCIPAL MAGISTRATEIn the presence of:Prosecution Counsel: Mr. MomanyiAccused: PresentCounsel for the Accused: Mr. SimiyuCourt Assistant: Ms. Miriam