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KLR WEEKLY e-NEWSLETTER |
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| Issue 080 | Newsletter Archive | Friday 6th November 2009 | |
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CONSTITUTIONAL ISSUES RAISED AT THE FIRST INSTANCE IN CRIMINAL TRIALS Reported by Nicholas Okemwa - Advocate Norman Wachira Ngobi v Republic [2009] eKLR (www.kenyalaw.org) In an appeal against a conviction and sentence on a charge of murder the Court of Appeal at Mombasa on the 16 of November 2009, upheld a High Court decision to impose the death sentence on the appellant as lawful. The appellant had been brought to court on a charge sheet stating that on 25th day of October, 2004 at about 4 p.m. at Mini-Valley village within Lamu District of the Coast Province, the appellant murdered Mary Wachira Ngobia, his wife, hereinafter “the deceased”. During the trial which was conducted with the aid of assessors the appellant, Norman Wachira Ngobia, when called upon to make his defence to the charge, made an unsworn statement and called no witness. The learned trial Judge then summed-up the whole case to the assessors each of whom returned a verdict of guilty to the charge of murder. The Judge also found the appellant guilty of the charge of murder, convicted him and duly sentenced him to death , that being the only lawful sentence provided under the law. It was against this decision that the appeal was launched. Amongst the grounds of appeal raised by Mr. Ngobia were that the court had erred in law by basing the appellant’s conviction on the reliance of the witnesses without accounting for the fact that the disparities and inconsistencies amounted to an unsafe conviction. The evidence in this case had been that of minors and it was his contention that caution should have been invited to safeguard the requirements of the law as per section 124 of the Evidence Act which provided how such evidence was to be approached. The other supplementary ground was that Mr. Ngobia’s right under section 72(3) of the Constitution having been violated by him not being brought to court within fourteen days of his arrest. As such the trial was itself a nullity and by that fact alone, he was entitled to an acquittal. For that proposition, his advocate relied on several decisions whose general effect was that where there was an unexplained violation of an accused person’s constitutional right, and that violation resulted in an unfair trial, the accused person was entitled to an acquittal. The Appellate Court sought to dispose of this issue first. It was of the opinion that what was important on the issue of the alleged violation of the appellant’s rights guaranteed under section 72 (3) of the Constitution was that right from the very first day when he appeared in the High Court and throughout the trial, he was represented by counsel and at no stage was the issue of his rights having been violated ever raised. Further the Appellate Court noted that all the cases adduced by Ngobia’s advocate had been cases of robbery with violence under section 296(2) of the Penal Code and, which had been tried by magistrates and where accused persons were generally not represented by counsel. It was apparent that the advocate had not been aware of decisions such as James Githui Waithaka & Another Vs Republic, Criminal Appeal No 115 of 2007, Protas Madakwa Alias Collins & Two Others Vs Republic, Criminal Appeal No 118 of 2007 and Thomas Sangare Kelolon Vs Republic, Criminal Appeal No 169 of 2006 which dealt with this particular issue in murder cases. The principles established by these latter authorities were to be found in James Waithaka Githui’s case, supra and were as follows:
“.....The two appellants, right from the time their trial opened in the High Court, were each represented by an advocate. Their trial was before the High Court which by law is the “constitutional court” in Kenya. The appellants and their advocates must have known that their constitutional right had been violated. Yet the advocates raised no kind of complaint at all and as we have said the High Court is the constitutional court in Kenya and if the appellants’ advocates had raised the issue there, the judge would have had to deal with the issue just as Mutungi, J. did in the NJOGU case, supra. When we asked Mr Muthoni and Mr Nganga why the advocates representing the appellants did not raise the matter with the Judge, their answer was that they did not know. An information before a judge is different from a charge-sheet before a magistrate. The charge-sheet would normally show on its face the date on which an accused person was arrested and the date on which he is brought to court. The Court was of the opinion that these remarks aptly applied to the circumstances of the appeal under consideration and that there was no reason shown why a conclusion different from that reached in the cases following the James Githui Waithaka case ought to be reached in the present appeal. This ground was accordingly rejected by the Appellate Court stating that if those rights had been violated then he had waived the right to complain by keeping silent about that violation in the High Court. On the second ground of appeal, the first witness who testified on behalf of the prosecution was a child of tender years, D. M, aged ten at the time he testified. The deceased was Ngobia’s first wife of and it appeared D. M. was their son. Before allowing the child to testify, the trial judge carried out a voire dire and concluded that he possessed sufficient intelligence to enable him appreciate what it meant to testify and that he also understood the nature of an oath. The child was then allowed to give sworn evidence. The second witness for the prosecution had been M. W. and she said she was fourteen years old. She was the daughter of the appellant with his second wife. After a voire dire, the Judge allowed her to testify on oath but as soon as she started to do so, the prosecuting counsel noticed that she was not quite willing to testify. Without seeking to declare her hostile he applied that he be allowed to cross-examine the witness. The Appellate Court was of the opinion that the M. W.’s evidence added no real value to anyone’s case. Though the Judge did not formally declare her a hostile witness, the effect of the Judge’s order allowing the prosecutor to cross-examine her was really to declare her a hostile witness. In ordinary circumstances, parties were not allowed to cross-examine their own witnesses and by allowing prosecuting counsel to cross-examine her, the Judge in effect declared her hostile. Accordingly, no weight was placed on her evidence. The prosecution also produced other witnesses but the only person who actually saw the incident occur was the was D. M. it was contended for the Ngobia that his evidence had inconsistencies and contradictions which rightly required corroboration under section 124 of the Evidence Act. On the question of contradictions and inconsistencies pointed out by Mr. Nyabena, they were to the effect that D. M. had said the offence occured at 12 noon while it was stated in the information itself that the offence took place at 4 p.m. He submitted that a difference of four hours had to be explained. The Court did not feel that there was much substance in this complaint. It is clear from the recorded evidence that the witnesses were merely estimating time. D. M. put it at 12 noon; M. W put it at 4 p.m. and other witnesses put it at times around 4 pm. In his unsworn statement, Ngobia himself talked of 12 noon stretching to 2 p.m. when he was woken up by the noise from Douglas. The truth was that the deceased met her death due to stab wounds on 24th October, 2004; whether the wounds were inflicted at 12 noon, at 2 p.m or at 4 p.m. was not such a grave issue. The witnesses were talking about time as was appreciated by each one of them. The Court however, agreed that even if the evidence of D. M. was to be accepted as true it still required corroboration. The evidence of D. M., even if accepted, required to be corroborated in material particulars. The learned Judge and the assessors who saw the child accepted his evidence as true. He was Ngobia’s son and was only ten years old. It is difficult to imagine why such a young boy would dream up falsehoods against his own father. Like the learned Judge and the three assessors the Court of Appeal was satisfied that D. M. was a witness of truth and that his evidence was correctly accepted. It also felt that his evidence had been fully corroborated by the evidence of the other witnesses. It was on this basis that the Court of Appeal on its own consideration of the recorded evidence, felt satisfied that the learned trial Judge and the assessors came to the correct conclusion on the matter, namely that the Mr. Ngobia, with malice aforethought caused the death of this wife, the deceased and that he was rightly convicted on the charge of murder. The sentence imposed on him was and still is the only lawful one and proceeded to dismiss the appeal. |
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CLARIFICATION |
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| Last week’s newsletter carried the case of the week which headlined “Man charged with murder of the Ainamoi MP acquitted”. We wish to clarify that the accused person was not completely set free but was convicted of a lesser charge of manslaughter and sentenced to 10 years in jail. We regret any false impression the headline created and apologize for any inconvenience it may have caused. | ||||||||||||||||||||||||||||||
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Gazette Notice Vol CXI-No 96 Dated 6th November, 2009 GAZETE NOTICE NO. 1180 SITE VALUE RATE IN EXERCISE of the powers conferred by section 4 (1) (b) of the Rating Act, the Deputy Prime Minister and Minister for Local Government approves adoption by the Municipal Council of Migori of a “site value” for purposes of levying rates. Dated the 29th October, 2009. MUSALIA MUDAVADI
GAZETTE NOTICE NO. 11802 SITE VALUE RATE IN EXERCISE of the powers conferred by section 4 (1) (b) of the Rating Act, the Deputy Prime Minister and Minister for Local Government approves adoption by the Municipal Council of Thika of a “site value” for purposes of levying rates. Dated the 29th October, 2009. MUSALIA MUDAVADI,
GAZETTE NOTICE NO. 11803 APPOINTMENT OF VALUER IN EXERCISE of the powers conferred by section 7 of the Rating Act, the Deputy Prime Minister and Minister for Local Government, approves the appointment of – F. J. ADUDA As valuer to prepare the Draft Valuation Roll for Municipal Council of Thika. Dated the 29th October, 2009. MUSALIA MUDAVADI,
GAZETTE NOTICE NO. 11804 APPOINTMNT OF VALUERS IN EXERCISE of the powers conferred by section 7 of the Rating Act, the Minister for Local Government, approves the appointment of- Francis O. Oketch, As valuers to prepare the Draft Valuation Roll for Town Council of Taveta. Dated the 24th December, 2004. MUSIKARI KOMBO
GAZETTE NOTICE NO. 11805 SITE VALUE RATE IN EXERCISE of the powers conferred by section 4 (1) (b) of the Rating Act, the Minister for Local Government approves adoption by the Town Council of Taveta of a “site value” for purposes of levying rates. Dated the 24th December, 2004. MUSIKARI KOMBO
GAZETTE NOTICE NO. 11806 TIME OF VALUATION IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act, the Deputy Prime Minister and Minister for Local Government gives approval to the Municipal Council of Migori’s Resolution under Min. No. SF/32/2009 as follows: “That the time of valuation for the Municipal Council of Migori’s Valuation Roll shall be January, 2008.” Dated the 26th October, 2009. MUSALIA MUDAVADI
GAZETTE NOTICE NO. 11807 TIME OF VALUATION IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act, the Deputy Prime Minister and Minister for Local Government gives approval to the Municipal Council of Thika’s Resolution under Min. No. SF&G/147/2009 as follows: “That the time of valuation for the Municipal Council of Migori’s Valuaion Roll shall be January, 2010”. Dated the 26th October, 2009. MUSALIA MUDAVADI
GAZETTE NOTICE NO. 11808 IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act, the Minister for Local Government gives approval to the Town Council of Taveta’s Resolution Min. No. 10/2004 as follows: “That the time of valuation for Town Council of Taveta’s Valuation Roll shall be 1st January, 2005”. Dated the 24th December, 2004. MUSIKARI KOMBO,
GAZETTE NOTICE NO. 11811 APPOINTMENT IN EXERCISE of the powers by section 85 of the Criminal Procedure Code, the Attorney-General appoints- Bernard N. K. L. Simba, to be public prosecutors for the purposes of the Water Act, 2002 (No. 8 of 2002) Dated the 3rd November, 2009. S.A. WAKO
GAZETTE NOTICE NO. 11812 MEMBERSHIP TO THE COUNCIL IT IS notified for information of the general public that the member of the Council under section 6 (2) (c) of the Act is- MATHEW KIRAI ITEERE The Commissioner of Police, with effect from 7th September, 2009. Gazette Notice no. 5390 of 2006, is amended accordingly. Dated the 3rd November, 2009. S.A. WAKO
GAZETTE NOTICE NO. 12027 EXAMINATION DATES PURSUANT to regulation 10 (3) of the Advocates (Admission) Regulation 2007, it is notified for general information that the Council of Legal Education Supplementary Examinations for the Advocates Training Programme will be held at the Kenya School of Law, Langata South Road, Karen, Nairobi from 30th November to 10th December, 2009, both dates inclusive. The examination timetable is as follows:
The deadline for registration for the examination is Friday, 13th November, 2009. W. KULUNDU-BITONYIE,
GAZETTE NOTICE NO. 12036 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of a petrol station. The proposed project will entail development; of a petrol service station which will include a fuel storage structure, a shop and a service bay. The project is located on Ongata Rongai/Ngong-Ngong Plot No. 27434 Kajiado District The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the Public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project B.M. LANGWEN
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| The National Council for Law Reporting Milimani Commercial Courts Building, Ground Floor P.O Box 10443 - 00100, Nairobi Kenya. Tel: (254 020) 2712767,2719231 Fax: (254 020) 2712694 © Copyright 2009 Kenya Law Reports |
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Kenya Law Weekly Issue 080/2009
6 November 2009
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KenyaLawBlog
