REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Criminal Appeal 55 & 58 of 2008 ANDREW SIMIYU WAFULA MATHEW WAFULA MUREFU ::::::::::::::::::::::: 1ST APPELLANT ::::::::::::::::::::::: 2ND APPELLANT ~VRS~ REPUBLIC ::::::::::::::::::::::: RESPONDENT JUDGMENT The Appellants were charged with others before Bungoma Principal Magistrate with several offences. The two were convicted of counts I, IV and VII and sentenced to serve five (5) years imprisonment on each count with sentences running concurrently. The offences were those of being in possession of home made guns and prohibited ammunition contrary to sections 34 (1) and 4 (3) of the Firearms Act, Cap 114. The appeal before this court is against both conviction and sentence. The state counsel Mr. Ogoti conceded to the appeal on grounds that the provisions of section 200 (3) of the Criminal Procedure Code were not complied with. Mr. Ogoti did not apply for a retrial for the reason that the trial took about five (5) years to be concluded. The record shows that one Mr. Odenyo, Senior Resident Magistrate heard one witness. The case was taken over by Ms Shitubi, Principal Magistrate who heard PW2 after which the prosecution closed its case. Ms. Shitubi also heard the defence and concluded the case by delivering judgment and sentencing the Appellants. The record does not show that the succeeding magistrate complied with section 200 (3) of the Criminal Procedure Code. The provisions of the section demand that the succeeding magistrate informs the accused persons of their rights to recall witnesses who had testified before the predecessor. The compliance by the court and the answer by the accused must be recorded. In the absence of any such record, a correct conclusion can be made that there was no compliance. Failure to comply with the said provisions denied the Appellants of their rights under the law. The omission renders the proceedings null and void and is fatal to the prosecution’s case. The Appellants were arraigned in court on 13/08/2003 and the trial ended on 17/7/2008. The two Appellants were in custody awaiting trial I suppose due to failure to raise sureties. The trial took five years. This appeal was filed on 30/7/2008 and has taken two years to be concluded. I agree with the State Counsel that the Appellants should not be subjected to a retrial.
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For the above reasons, I declare the trial a nullity and set aside the conviction and sentence in respect of both Appellants. F. N. MUCHEMI JUDGE Judgment dated and delivered at Bungoma this 21 st day of October, 2010 in the presence of the Appellants and the State Counsel Mrs. Leting. F. N. MUCHEMI JUDGE
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