Judge orders case retrial over faulty charge sheet

By Wahome Thuku

Thika, Kenya: Many criminal suspects go scot-free due to careless mistakes made either during investigation or prosecution of their cases.

When this happens, the miscarriage of justice is visited on the victims of the crimes. It requires very keen judicial officers to spot such injustices and deal with them appropriately.

In 2008, Mr John Mburu Waithina was charged with attempting to rape a girl. He was accused of having committed the offence at a village in Thika District (now Thika County) on May 4, 2008.

It was alleged that at the gate to the girl’s home, Mburu attacked her, knocked her to the ground and attempted to rape her. He also allegedly strangled her as she tried to fight back.

A man who was passing by reported seeing Mburu struggling with the girl. He called another woman who lived nearby and they went to the rescue of the girl.

With the help of other members of the public they managed to arrest Mburu, just as he was trying to flee, and took him to the local elders who then handed him over to Kihote Police Post from where he was escorted to Ruiru Police Station.

The two witnesses and the girl knew Mburu very well and they accompanied him to the police post at around 9.30pm. Police noticed that the girl’s clothes were torn while those of Mburu were muddy. 

Evidence

The girl was taken to Ruiru District Hospital where a clinical officer examined her. She observed that the girl’s clothes were muddy, torn and she had bruises and scratch marks on the neck and nose.

She complained that she was a victim of attempted rape by a man she knew very well.

The clinical officer classified the degree of injury as ‘harm’.

Mburu was arraigned before a Thika Magistrate’s Court charged with attempted rape contrary to Section 4 of the Sexual Offences Act.

The witnesses testified in court and gave corroborating evidence of the attacks. In his defence, Mburu gave an unsworn testimony.

He claimed that he had been drinking with the girl that evening. The girl demanded for more drinks but he had run out of cash.

He decided to escort her home and on reaching outside the house she started screaming.

Her screams attracted several people who came and arrested him on claims of trying to rape her.

He denied the offence. Mburu was convicted and sentenced to serve 12 years imprisonment.

He filed an appeal in 2009 at the High Court in Nairobi arguing that the entire trial was a nullity as the charge was defective because the name of the complainant in the charge sheet and that of the person who testified in court were different.

The State opposed the appeal arguing that the variation in the names of the complainant in the charge sheet and the record of the court was curable under Section 382 of the Criminal Procedure Code.

The State counsel submitted that the evidence of two witnesses was strong enough to convict the man. He had not only been caught in the act, but was also positively identified.

Lady Justice Achode had little difficulty dealing with the case.

First, she observed that Mburu’s defence was a mere denial of the offence. He had been well placed in the scene of the crime and positively identified by people who knew him well. It was around 6.30pm and they were all able to observe him in the light of the day.

But the judge had to decide whether the variation in the names of the girl on the charge sheet and the name she gave in court was enough to have prejudiced Mburu’s trial as claimed or whether the defect was curable.

“The nature of the defect and the need for clarification was an important aspect that went to the core of the prosecution’s case, and the substance of the charge against the Appellant. Whom the Appellant is alleged to have attempted to rape was such an important issue that the learned trial magistrate ought, at the very least, to have dealt with the issue in the Judgment.

“The learned trial magistrate did not do so and in the circumstances of this case the variation in the evidence and the charge sheet prejudiced the appellant’s case and is incurable under Section 382 of the Criminal Procedure Code,” Lady Justice Achode ruled.

Burden of proof

She noted that Mburu was not represented by a lawyer during the trial and may have been ill-equipped to deploy all the provisions of the law available at his disposal on the issue.

“I am however, minded that when evaluating evidence in a criminal trial the court should always bear in mind that the burden of proof rests with the prosecution and never shifts to the defence,” the judge added.

Achode acknowledged that the evidence by the prosecution was overwhelming, and Mburu’s defence at the trial did not manage to cast any reasonable doubt.

“The failure was on the part of the prosecution who did not amend the charge sheet appropriately and on the part of the learned trial magistrate who did not notice or correct the anomaly. The prosecution evidence on record was however overwhelming,” the judge said.

With that in mind the judge started considering whether it would be possible to order for a fresh trial of Mburu.

Judge Achode said whether a re-trial should be ordered or not must depend on the circumstances of the case.

Defective

“It will only be made where the interest of justice requires it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant, whether the mistakes leading to the quashing of the conviction were entirely the prosecution’s making or the court’s.”

She went on: “The offence in the case before me occurred on 4th May 2008 within Thika area and I have not been told that it would be difficult to trace the three main witnesses for a re-trial. Although the trial was defective, there was overwhelming evidence on the part of the prosecution.”

The judge quashed Mburu’s conviction and set aside the sentence and ordered that he faces a fresh trial. Such trial would be before a different magistrate.