Charles Chacha Sasi v Republic

3. Aggrieved by the superior court’s decision the appellant led this appeal on 6th June, 2009. The appeal raised only two grounds:“ 1. The trial magistrate and the rst appellate court erred in fact and law by convicting and sentencing the appellant to death despite the fact that his constitutional rights as enshrined in section 72 (3) of the Constitution had been grossly violated. 2. The rst appellate court erred in law and in fact in failing to analyse and reevaluate the evidence tendered in the subordinate court.” 4. Mr. Odhiambo the learned counsel appeared for the appellant and Miss Oundo, learned Senior State Counsel appeared for the state. 5. On rst ground, Mr. Odhiambo submitted that the appellant was arrested on 21st May 2004 and taken to court on 9th June 2004. According to Mr. Odhiambo’s calculations, the appellant was not taken to court until after a period of 18 days and although he concedes that there was a public holiday in between, he contended that the period of 14 days stipulated in section 72 (3) of the Constitution was exceeded rendering the trial illegal and a nullity. He further submitted that under section 72 (3), the burden of explaining any delay is on the prosecution and in this case the burden had not been discharged because no explanation for the delay had been oered. He concluded by urging the Court to follow its previous decisions on the point and quash the conviction and set aside the sentence. 6. On the second ground, he submitted that the superior court failed to re-evaluate the evidence rendered in the subordinate court, rst, because the complainant had testied that he was found at 8.00 a.m. by the Assistant Chief of the area whereas under cross-examination he contradicted himself by saying that, other people came and placed twigs on him at the same time and for this reason the complainant’s evidence was unreliable. Second, there was no proof of the nature of injuries inicted on the complainant in that the P3 form had not been produced by the clinical ocer who had completed it but by another witness. He contended that the nature of the injury was an important ingredient of the oence of robbery with violence. 7. Miss Oundo, in her submissions contended that the appellant was arrested on 21st May 2004 and that there was an intervening weekend and the rst ocial day after the arrest was Monday 24th May 2004 and since it was not in contest that the appellant was taken to court on 9th June 2004 and in addition 1st of June 2004 was a public holiday, the prescribed period under the Constitution was exceeded by one (1) day only, and a delay of one day was excusable, going by the recent decisions of this Court. 8. On the second ground of appeal, Miss Oundo submitted that the inconsistency concerning whether the appellant was seen by the Assistant Chief or other people before he was taken to the hospital was immaterial, as the appellant had not only been identied by the complainant but the identication was by recognition, the complainant having known him for 20 years. 9. She concluded her submissions by stating that, it was not necessary for the prosecution to have proved the nature of injuries using the P3 form since the other ingredients under section 296 (2) of the Penal Code namely, the appellant was in the company of one other person or persons, and were armed with swords and pangas, were proved. 10. We have carefully considered the rival arguments as set out above and the law. On the rst ground, what emerges from our calculation of the days the appellant was held before his rst appearance in court, is that the period of detention was for 13 days and well within the prescribed period of 14 days. In our https://new.kenyalaw.org/akn/ke/judgment/keca/2009/463/eng@2009-08-07 2

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view, because the appellant was arrested on 21st May 2004, taken to the Assistant Chief on 22nd May 2004 and the following two days were not working days as they were Saturday and Sunday respectively, the prescribed time started running from Monday 24th May 2004. After taking into account that 1st June 2004 was a public holiday (Madaraka Day) and the 6th and 7th were non working days being Saturday and Sunday, the appellant was as a matter of fact held for 13 days, which are well within the stipulated time. Moreover, on this point, although we are not making any determination, we consider it important to draw the attention of litigants and counsel to the provisions of section 84 (7) of the Constitution for the purpose of underscoring the importance of raising any alleged violations under the Constitution as early as possible. Section 84 (7) reads:“ A person aggrieved by the determination of the High Court under this section may appeal to the Court of Appeal as of right.” As a result, nothing turns on the rst ground and the same fails. 11. We would also wish to observe that some of the recent authorities concerning this Court’s interpretation of the Constitution have not prescribed a rule of thumb concerning compliance with*section 72 (3).**// In this regard, the Court, in the case of Paul Mwangi Murunga V. Republic 2008 (e KLR) stated:“ These are no more than examples which would and can provide the prosecuting authorities with an explanation to enable them discharge the order placed on them by section 72 (3) of the Constitution. So long as the explanation prefered is reasonable and acceptable, no problem would arise. Again the Court might well countenance a delay of say one or two days as not being inordinate and leave the matter at that.” 12. In our view the alleged inconsistencies concerning time are all matters of fact, upon which the two courts below have made concurrent ndings. In Njoroge V. Republic [1982] KLR 388 this Court held:“ On a second appeal, the Court of Appeal is only concerned with points of law. On such an appeal the Court is bound by the concurrent ndings of fact made by the lower courts unless those ndings were not passed on evidence.” 13. Concerning the second ground, the challenged identication was by recognition, by a complainant who had known the appellant for twenty years. In addition the two lower courts having made concurrent ndings of fact, we cannot disturb such ndings as indicated above. Again we are of the view that the ingredients of the oence charged were proved as stipulated in section 296 (2) of the Penal Code and consequently the alleged failure of re-evaluation of evidence is in our view unfounded in the face of adequate proof that the appellant was in company of more than one other person or persons and they were armed with oensive weapons. 14. All in all, we nd no merit in this appeal and the same is dismissed. DATED AND DELIVERED AT KISUMU THIS 7TH DAY OF AUGUST, 2009. E. O. O’KUBASU …………………….. JUDGE OF APPEAL J. W. ONYANGO OTIENO https://new.kenyalaw.org/akn/ke/judgment/keca/2009/463/eng@2009-08-07 3

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…………………………. JUDGE OF APPEAL J. G. NYAMU ……………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2009/463/eng@2009-08-07 4

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