Dennis Masinde Muricho v Republic

appellant was dissatisfied with the said conviction and sentence and raised the following grounds in his petition of appeal dated 20-04-2025; 1. The trial court erred in law and in fact by denying the appellant fair trial as provided under the Constitution of Kenya 2010 and the Criminal Procedure Code. 2. The trial court erred in law and in fact by denying the appellant a chance to defend himself against the charges. 3. The trial court erred in law and in fact by shifting the burden of proof to the accused to prove his innocence. 4. The trial court erred in law and in fact by holding that the accused was guilty of the defilement because he missed to attend court. 5. The trial court erred in law and in fact by denying the appellant opportunity to mitigate before sentencing. 6. The appellant has through his submissions dated 1-08-2025 sought to amend his petition of appeal under Section 350(2)(v) of the Criminal Procedure Code. The said Section provides that; Notice in writing of an application for leave to amend a petition of appeal shall be given to the Registrar of the High Court and to the Attorney-General not less than three clear days, or such shorter period as the High Court may in any particular case allow, before the application is made; and an application for leave to amend a petition of appeal shall be made either at the hearing of the appeal or, if made previously, by way of motion in open court.’ 7. I have noted such attempts in many of other matters which I do not think is procedural and competent. It seems to me that this is a practice being perfected from specific prison facilities which is a pointer to some common advice given to the inmates which in my view is misleading and incompetent as such prayers cannot be made through final submissions. I will consider this appeal based on the grounds as stated above. 8. Looking at the grounds of appeal, it is clear to me that the only issue touching on the weight of evidence is found in ground 3 which claims that the trial court shifted the burden of proof to the appellant. The other grounds border on failure of the court to give the appellant a fair hearing and violating his constitutional rights to a fair trial. I will start with the issue of violation of the appellant’s constitutional rights. 9. The appellant has submitted that his constitutional right to be produced in court within 24 hours or within a reasonable time was violated. The respondent has responded to this by first admitting that the appellant was kept in police custody for seven days before he was arraigned then asking the court not to find it fatal to the case or entitling the appellant to acquittal. The respondent has urged the court to follow the findings in Simon Ndichu Kahoro v Republic [2016] KECA 576 (KLR) and Fappyton Mutuku Ngui v Republic [2014] KECA 570 (KLR). In these cited authorities, the courts held as follows on this issue; In the first case; Before penning off, we feel impelled to clarify a likely misapprehension of our finding regarding infringement of the appellant's right to fair trial under Article 50 (c) and (j) of the Constitution, 2010. We should not be understood to be setting up a general principle or precedent that every breach of Article 50 of the Constitution, 2010 should automatically result in an acquittal of an accused person. Each case must be considered in the light of its https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 2

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own special circumstances as consequences of breach of fair rights to fair trial depend on all the surrounding circumstances of a case.’ In the second case; This issue has been the subject of several decisions of this Court. The correct position in law was set out in Julius Kamau Mbugua v Republic (2010) eKLR. where the Court stated that the violation of the appellant’s right to be produced in court within twenty-four hours would not automatically result in his acquittal. Instead, the appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights. On this basis, the first appellate court did not consider the issue fatal to the prosecution, and we would agree. This ground of appeal too, lacks merit and fails.’ 10. Whereas I agree with the Judges and am actually bound by the decisions in the above matters, I must express my disappointed with the way the respondent has applied the findings in its submissions on the issue. The respondent seems to impute that the police are at liberty to keep suspects in their cells as long as they can explain the reason for doing so. This is an unfortunate way of looking at the case and attempting to justify the police action of keeping the appellant in their custody then come up with all manner of explanations. 11. The respondent claims that the police in this matter needed to conduct investigations for the seven days but looking at the testimony of the investigating officer (PW6), I do not see the reason for such a delay. The investigating officer testified that he arrested the appellant on 13-05-2020 and escorted the complainant and the appellant to hospital on 14-05-2020 and on 15-05-2020, he took blood samples to the government chemist. There is no explanation of why the appellant had to wait for another five days to be charged in court. 12. Although this issue was not raised in the trial court, it is important this court addresses it as it touches on constitutional rights of suspects as enshrined in Article 49(1)(f) of the Constitution. Where the police or any law enforcement agency finds obstacles or reasons for delaying filing charges against an arrested person, the lawful and procedural way of postponing the decision to charge is for them to approach the court for leave to detain the suspect for a certain period. Where the court is convinced that the police or the agency needs more time, it must by virtue of Article 49(1)(g) inform the suspect the reason for continued detention. 13. It is my view that the police do not have discretion to decide when to take a suspect to court. Police cells are meant for temporary detention of suspects and not as remand homes. the Constitution makes it clear that they have a duty is to present the suspect to court within a reasonable time and not later than 24 hours unless the twenty four hours ends outside ordinary court hours, or on a day that is not an ordinary court day in which case they must be presented the next court day. The explanation given in the respondent’s submissions are not only hearsay but also a joke and an insult to constitutionalism and must be condemned in the strongest terms possible. In the premises, I hold that the police violated the appellant’s constitutional rights as enshrined in Article 49(1)(f) of the Constitution. I however do not think that in the circumstances of this case, the violation of the appellant’s right entitles him to an acquittal. That would be an upfront to justice to the victim and will inflict more damage to the society than to the rights of the appellant. 14. On the issue of compensation as against acquittal, I must also express my disappointment in that line of thinking. When compensation is awarded, it translates to a burden to tax payers with the result that, the public loses funds which would have been used for other useful purposes instead of correcting https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 3

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deliberate mistakes of the police who ironically wait to be paid using taxes paid by the same people they seek to burden with their unlawful and unconstitutional actions. 15. The appellant has submitted that he was denied access to witness statement and evidence. It is a constitutional requirement that an accused person is entitled to be informed in advance of the evidence which is intended to be used against him and reasonable access to the same. That is the purport of Article 50(2)(j) of the Constitution which provides that; Every accused person has the right to a fair trial, which includes the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.’ 16. The appellant alleges that he was not ready for the hearing on 18-08-2021 when the complainant testified because he had not been supplied with witness statements and as such, he did not fully participate in the proceedings. The typed proceedings availed to me show that the trial court on 19-10-2020 ordered that the appellant be supplied with statements. On 25-11-2020, the appellant complained that he had not been supplied with statements but the matter did not take off on that date. On the dates that immediately followed, he was absent until 7-07-2021 when he appeared and asked for cash bail and was granted one of Kshs 200,000.00. On that date, he did not complain of lack of statements. 17. When the matter came for hearing on 18-08-2021, the appellant stated that he was not ready to proceed without giving reasons but the matter proceeded with the complainant testifying. In the next two hearing dates, he complained of sickness and not lack of statements. On 11-01-2022, the prosecution appeared with three witnesses and appellant stated that he was ready to proceed without complaining of lack of witnesses’ statements. 18. On 24-05-2022, the appellant told the court that he had not received PRC and P3 forms and did not complain of lack of witnesses’ statements and he is seen cross-examining the doctor who testified that date. On 19-07-2022, the appellant asked to be supplied with the occurrence book and police investigations diary and on 30-08-2022, when the investigating officer appeared to testify, the appellant cross-examined the officer on issues touching on the occurrence book and his investigations meaning that he had proper details of the two documents. 19. In view of the above history, I decline to accept the appellant’s complaints that he was not supplied with witnesses’ statement and evidence. This ground has no basis and I dismiss it. 20. The other ground raised by the appellant is that he was denied opportunity to ventilate his defence. In answer to this, the respondent has relied on Section 206 of the Criminal Procedure Code and blames the appellant for failure to appear in court leading to court ordering closure of the defence case. It has also cited the following holding in case Republic v Galma Abagaro Shano [2017] KEHC 2444 (KLR); This court has in its ruling delivered on 24th of April 2017 addressed the provisions of Section 206 of the Criminal Procedure Code and Article 50 (2) (f) of the Penal Code. Article 50 (2) (f) provides that: “Every accused person has the right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed.” This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony. My view is that the Constitution of Kenya, being the supreme law of the land does not differentiate the offences be they felonies or misdemeanors. Under the Constitution, every person has a right https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 4

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to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed. My understanding of this provision is that all the persons who appear before the court charged with either felonies or misdemeanours enjoy equal right to a fair trial which includes the right to be present when being tried unless their conduct makes it impossible for the court to continue with the trial. It was my view that where an accused person, irrespective of the charge he/ she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him. This court determined that it would consider the evidence of the prosecution, in the absence of the accused, and decide whether it proved beyond reasonable doubt that the accused caused the unlawful death of the deceased and that in so causing that death the accused had malice aforethought.’ 21. The proceedings show that the appellant told the court on 31-07-2023 that, he will give unsworn statement and call three witnesses in his defence. The matter was fixed for defence hearing on 20-09-2023 on which date the appellant failed to appear and a warrant of arrest against him was issued. The warrants were lifted on 23-10-2023 when the appellant appeared and explained that he had not correctly heard the hearing date. On this date, the court made an order that the appellant be supplied with typed proceedings. 22. The appellant was to fail to appear again on 18-06-2024 and on 16-07-2024, the court issued warrants of arrest and his cash bail forfeited on 11-09-2024. On 11-12-2024, the court closed the defence case in absence of the appellant who had failed to appear and proceeded to deliver judgement on 10-03-2025 also in absence of the appellant. The appellant was eventually arrested as indicted elsewhere above. 23. I have agonized over this issue noting that the appellant was the author of his misfortune and in my attempt to uphold the appellant’s right to a fair trial. It may be so that the appellant caused the delay and led the court to close his case which jurisdiction and powers it had, but the way the matter was handled after his arrest gives me some doubt on the integrity of the proceedings of the day. It is apparent that the appellant had not been supplied with proceedings as ordered by the court after the closure of the prosecution case because, he is seen to still requesting for them when he was called to mitigate. The statement the appellant made in mitigation is suggestive that he may have not been aware of the stage of the proceedings and if he was aware, he did not know what his rights or options at that stage were. 24. The trial court did not record whether it informed the appellant that there was already a judgment against him and that creates doubt in my mind whether it was done. My doubt is given credence by the court’s observation that the appellant did not mention the crime or the victim. If indeed the appellant was made aware of the stage or status of the proceedings, then the trial court made an error of omissions in recording the proceedings. It is true that the appellant may have given the court agony in absconding but he was eventually arrested and his cash bail of Kshs 200,000.00 forfeited which in my mind is punishment enough for absconding. 25. When the court closed the appellant’s case, it did not record the reasons which convinced it that the appellant was deliberately making his apprehension difficult and hence frustrating the proceedings. When the matter came for several mentions thereafter, there was no indication of why the appellant had not yet been arrested. I do not blame the court for closing the appellant’s case but it should be noted that, the appellant had indicated that he had witnesses to call and in order to safeguard his rights, there should have been a report from the investigating officer or the prosecution on why he was not being arrested. All that is recorded is that he was absent and warrants were extended. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 5

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26. Similarly, I do not exonerate the appellant of blame. He had the duty to attend court and follow up on the status of the case and present himself to the court at the earliest opportunity. However, I think there will be more prejudice in closing him out of an opportunity to ventilate his defence than in allowing him to call his witnesses. I say so upon noting the gravity of the offence and the sentence meted upon him. He has already lost his cash bail and he is serving a sentence which as I have stated above is punishment enough for absconding. 27. Having said the above, I am inclined to agreed with my brother Honourable Justice Stephen Githinji in Solomon Locham v Republic [2015] KEHC 1451 (KLR) where he held as follows in respect to the meaning of Section 206 of the Criminal Procedure Code; The above provision shows clearly that only where an accused person is charged with an offence which is a misdemeanour can the trial Magistrate proceed in his or her absence.……. After the 2nd accused was arrested and arraigned in court, the provisions of section 206(2) of the Criminal Procedure Code were not complied with. It’s probable his absence in court was as a result of a cause of which was beyond his control. The order by the trial Magistrate for issuance of warrant of arrest and to proceed in absence of the 2nd accused was made at the first instance the 2nd accused was absent. This was not right as the accused was not allowed time to probably surface and offer an explanation. In other words, at that moment there were no enough grounds to reasonably conclude that the 2nd accused had absconded and was not willing or available on another day to further participate in the trial. The procedure adopted by the trial Magistrate deprived the 2nd accused of his right to be present throughout his trial as envisaged under section 194 of the Criminal Procedure Code and Article 50(f) of the Constitution which states that an accused person should be present when being tried, unless his or her conduct make it impossible for trial to proceed. Proceeding without him amounts to mistrial.’ 28. For clarity Section 206 (2) of the Criminal Procedure Code provides that; 1. If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs. 2. If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits. 3. A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment. 4. If the accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 6

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29. In view of the above, I am minded to give the appellant a second chance to defend himself. In order not to embarrass the defence hearing and the trial court’s independence of mind, I choose not to handle the issue of the weight of evidence and I do hereby order as follows; 1. The conviction by the trial court dated 19-03-2025 and sentence meted on 7-04-2025 are hereby set aside. 2. The matter is remitted to the trial court for defence hearing. For clarity, the matter shall proceed from where it had reached on 31-07-2023, that is to say defence hearing. 3. The defence hearing shall be before the same Magistrate unless he is no longer in the station in which case the head of the station shall allocate the file to a Magistrate of his choice. Whichever the case, the matter shall continue from the defence hearing stage. 4. During the defence hearing and until the judgment is rendered, the appellant shall not be admitted to bail or bond. DATED SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JANUARY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in presence of the appellant (online from Kamiti prison) and Miss Torosi for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/619/eng@2026-01-30 7

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