Suspects walk free, thanks to laxity in court

Tuesday May 01 2018

The Kibera Law Courts in Nairobi: A review of a number of cases shows that some magistrates and prosecutors are making blunders that see suspects freed. PHOTO | FILE | NATION MEDIA GROUP


Suspects are walking free, thanks to blunders by magistrates and prosecutors, a review of various cases has shown. The most common errors are magistrates’ failure  to indicate the  language to be used throughout the trial, and charge sheets citing the wrong sections of the law.

Citing the incorrect section of the law and Penal Code renders the charge defective and non-existent. 

Other notable mistakes are magistrates’ failure to admit the suspects’ defence before convicting them, relying on single witnesses, and  relying on contradictory evidence.

However, it is notable that  Justice Francis Gikonyo of the High Court in Meru recently ruled that there is no prohibition against convicting a suspect on the evidence of a single witness, if the evidence is sufficient. 

A case in point is where a villager, Mugo Ndegwa, imprisoned for 20 years for attempting to defile a nine-year-old girl, was last month released by the High Court in Nyeri after it found out  that the trial magistrate had rejected his defence.



Justice Abigail Mshila found that during the proceedings, Mukurweini Principal Magistrate, Mr Victor Chianda, had failed to record crucial procedures, as required.

Explaining the legal blunders, lawyer Wahome Gikonyo said that the charges levelled against Mr Ndegwa did not conform to the law.

“The charge sheet lacked words like ‘committing’, ‘unlawfull’y and ‘intentionally’. Lack of such words render the charge fatally and incurably defective. A charge for  any criminal offence must be specifically stated and communicated to the suspect,” he said.

A trial court must comply with sections of the Criminal Procedure Code, specify the offence, and cite the section of the law in the sentence.

“In a defilement case, a trial court must record the questions a minor is asked, as well as their  answers,  prior to the admission of the evidence. It must be recorded whether the child appreciates where she is, appreciates the responsibility and duty to tell the truth and the sufficiency of her  intelligence,” said the lawyer.


He added that the court must also record the opinion formed regarding whether the minor understands the nature and solemnity of the oath, and also whether it is satisfied that the child can give sworn evidence.

“All these must be recorded so as to enable an appellate court to arrive at a decision on whether this important factor was rightly decided. The failure to record the terms of satisfaction is fatal to the conviction,” Mr Gikonyo added.

The test conducted on the child must be of the required standards. “The test is mandatory when a minor is called to give evidence. In its absence there is no evidence upon which a conviction can be based,” he said.

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In the Ndegwa case, he noted, the magistrate failed to observe all the above steps,  including failing to record the procedures and the language used in the trial.

In another case, a man and a woman condemned to death for robbery with violence escaped the hangman’s noose courtesy of blunders by State prosecutors.

Mercy Muthoni and Joseph Muiruri Nderitu were convicted of  robbing Weru Murakaru  of a mobile phone, Sh18,000 cash and a Toyota Succeed,  all valued at Sh722,500.  They  committed the offence on September 12, 2013, at Lachuta farm in Gatarakwa, Nyeri County.


Judge Rachael Ng’etich freed them after finding that the trial court relied on a single witness, and that there were discrepancies in the description of the stolen motor vehicle.

“The complainant admitted that no identification parade was conducted. He also admitted that it was the first time  he was seeing the suspects. The trial court erred in believing prosecution evidence on identification by recognition yet the appellants were not known to the complainant before,” said Justice Ng’etich.

It was also noted that  the police made no  enquiry regarding the ownership of the vehicle  while the witnesses gave different registration numbers.

“The prosecution never amended the charge, neither did the complainant avail ownership documents,” the judge said.

Mr Gikonyo said the trial magistrate, Christine Wekesa,  erred in  condemning the suspects to death when the evidence had glaring contradictions.

On the issue of identifying witnesses, the lawyer said the convicts were condemned after being identified in the dock.


“It is trite law that description should be given at the earliest opportunity. In this case the complainant gave the descriptions after the suspects were arrested, which is the reverse of what should have happened,” Mr Gikonyo said.

In Nakuru, High Court Judge Maureen Odero quashed a 25-year jail term imposed on a villager, Wanyaga Githinji, noting that  the prosecution had failed to prove   the victim’s age.

Githinji had been convicted for defiling a 14-year-old girl in Molo.

While faulting the trial court, the judge substituted the sentence with 10 years’ imprisonment for the offence of committing an indecent act.

Ms Odera ruled that age of the victim  of a sexual assault under the Sexual Offences Act is critical because  defilement  offences of are categorised based on the age of the victim.

In her evidence, the complainant   had said that she was 13 years old. 


Usually, age is proved by presenting  a document such as a  birth certificate, a baptism certificate or a  school identity card.

But  in the absence of such proof, Justice Odera noted, the evidence of a parent and/or guardian is sufficient.

In Githinji’s  case, no documentary proof was produced to back the complainant’s claim that she was 13, and neither of her parents testified.

Consequently, Ms Odera said,  there was no evidence to prove the complainant’s age.


Meanwhile, Nyeri High Court Deputy Registrar Ms Irene Muthee absolved the magistrates from wrongdoing, saying they pass judgments based on the evidence available.

“It is the evidence that negates the accused person from the offence. If the case is not proved beyond reasonable doubt, the accused is set free,” she added.

She advised magistrates to read the decisions of the High Court and the court of  Appeal — which she said had more records than those at magistrates’ courts — to find out where they had gone wrong in order to avoid repeating mistakes.