By Nyakundi Nyamboga
The appellant was convicted in 2004 by Nakuru Principal Magistrate Kathoka Ngomo for robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death.
He had robbed Joseph Wachira Sh2,500 and a wallet in May 2003. Police later recovered Sh2,000 from him.
His first appeal to the High Court was dismissed. The appellant instructed lawyer Evans Ondieki to represent him in this appeal to the Court of Appeal.
The main grounds of appeal were that the High Court erred in the law in confirming a conviction based on a defective charge. Ondieki submitted that although the prosecution had indicated that it would apply for leave to amend the charge, the charge was never amended to charge the appellant with robbery with violence under Section 296(2).
The record of the subordinate court shows that on March 12, 2003, the appellant appeared before the principal magistrate and was charged with robbery contrary to Section 296(1) of the Penal Code. He pleaded not guilty and a plea of not guilty was entered. The following day, the appellant appeared before a resident magistrate, K A Owuor, when the prosecutor made an application to amend the charge saying: "We apply to amend the charge sheet under Section 214 of the criminal procedure code. The accused should be charged with capital robbery. We would like to amend the section from 296(1) to 296(2)".
Charge amendment
The resident magistrate thereupon ordered the appellant to appear before the principal magistrate on the same day to hear the application for amendment of charge.
The record of the subordinate court does not, however, show that the principal magistrate dealt with the application for amendment of the charge on the same day or any other subsequent day before the trial began before the principal magistrate on May 2, 2003.
Section 214 of the criminal procedure code gives the court the power to permit the alteration of the charge by either amendment or substitution at any stage of the trial, but before the close of the prosecution case.
However, where the charge is so altered, the court shall call upon the accused person to plead to the altered charge.
In the instant case, the Court of Appeal observed: "It seems that neither was a new charge for robbery with violence contrary to Section 296(2) of the Penal Code substituted for the original charge formally altered to read Section 296(2) instead of Section 296(1). It seems, however, that the section of the law under which the appellant was charged was altered by hand in the original charge sheet to read 296(2), but there is no corresponding record to show that the trial court allowed such alteration or that the appellant was called upon to plead to the altered charge."
Unlawful alteration
The court went on: "The effect of all this is that the alteration of the charge by whoever did it was unlawful and had no legal effect with the results that the only valid charge on record against the appellant was the charge of robbery contrary to Section 296(1) of the Penal Code. It follows that the conviction of the appellant for robbery with violence contrary to Section 296(2) is illegal.
Despite this finding, the court invoked Section 361(4) of the criminal procedure code, which empowers it to substitute a conviction where it finds that both the magistrate’s court and the High Court are satisfied that the facts constituting a lesser offence are proved during a trial of a related more severe offence.
In this case, the trial magistrate’s court believed the prosecution case and disbelieved the appellant’s evidence. The High Court, after re-evaluating the evidence agreed with the findings of fact by the trial magistrate’s court.
Said the Court of Appeal Judges: "The evidence accepted by the two courts below as proving the appellant guilty of capital robbery also proved the offence of simple robbery, which is not only a minor offence to capital robbery, but also the charge that the appellant lawfully faced and was tried for."
They proceeded to set aside the conviction for capital robbery and the death penalty, and entered a conviction for simple robbery "for which the appellant is sentenced to the period already served".
—The writer (nnyamboga@standardmedia.co.ke) is Standard Group Associate Editor, Legal