Prosecution Blunders That Favour Suspects

Whether willingly or unwittingly, blunders by magistrates and prosecutors cause suspects to be freed either during the first trial or on appeal. The most common errors are the failure to indicate the language to be used throughout the trial, the charge sheets citing the wrong sections of the law, failure to admit the suspects’ defence before convicting them, relying on
single witnesses, and relying on contradictory evidence. 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.
Citing the incorrect Law: Citing the incorrect section of the law and Penal Code renders the charge defective and non-existent. This error is mostly introduced by the prosecutors and will be quickly noticed by the magistrate or the defence.
Relying on single witnesses: 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. 
Case Study:  Joseph Ndegwa Mugo was charged with the offence of defiling a girl under the age of 11 years contrary to section 8(2) of the Sexual Offences Act.  He also faced an alternative charge of indecent act with a child contrary to section 11(1) of the same Act.  He was tried before the Resident Magistrate, Nyahururu and was convicted on the main charge.  He was sentenced to 20 years imprisonment. He appealed against both conviction and sentence and was released by the High Court in Nyeri after it found out that the trial magistrate had rejected his defence.
For example, the charges levelled against Mr Ndegwa did not conform to the law because the charge sheet lacked words like ‘committing’, ‘unlawfull’y and ‘intentionally’. Lack of such words render the charge fatally and incurably defective because a charge for any criminal offence must be specifically stated and communicated to the suspect.
Furthermore, 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. The court must satisfactorily test the minor called to give evidence,  and record its opinion on the sufficiency of the minors intelligence and whether the child can give sworn evidence.  The court must form and record its opinion on whether the minor appreciates the court, appreciates the responsibility and duty to tell the truth, and understands the nature and solemnity of the oath, 
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. Otherwise, the failure to record the terms of satisfaction may be fatal to the conviction.
In the Ndegwa case, the appellate court noted the magistrate failed to observe all the above steps,  including failing to record the procedures and the language used in the trial and the appeal succeed.

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