It has now emerged that 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 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.