- Kevin Owino Odiala had been charged at the Ukwala senior magistrate’s court with causing grievous harm to another.
- His case had run a substantial course and the magistrate had found that he had a case to answer in a ruling delivered on November 2 last year.
Image: FILE
The High Court has come to the rescue of a man who had been convicted by a magistrate without being given a chance to defend himself.
Kevin Owino Odiala had been charged at the Ukwala senior magistrate’s court with causing grievous harm to another.
His case had run a substantial course and the magistrate had found that he had a case to answer in a ruling delivered on November 2 last year.
Records of the trial court shows that the case was heard and five prosecution witnesses testified before being closed on October 24.
Odiala then said that he wished to tender sworn evidence and had no witness to call.
The court then fixed the case for defence hearing on December 14.
But before he was to defend himself on the appointed day, Christine Irene Agutu, the senior magistrate hearing the matter went ahead to write the full judgment, convicting him with the offence.
So on the day set for his defence, the magistrate read out the judgment without the man’s input.
“On the latter date, a duly written judgment was read and pronounced in open court with the accused said to be present together with court assistant and the prosecutor was said to be online,” court papers on the case read.
The magistrate set December 28 as the day for pre-sentencing hearing and assessment report was to be tendered.
The man was to give his mitigation.
“The accused was then remanded in custody at Siaya GK Prisons awaiting pre-sentence report on December 28, 2022.”
Court records show that nothing transpired on the said date and no pre-sentence report was filed.
Court papers show that the handwritten judgment signed by the magistrate was stumbled upon in her office while she was way on interdiction.
“The head of station was on leave. In the intervening period, the trial magistrate has since been interdicted and from the record, it appears that the file was stumbled upon from the trial magistrate’s chambers while she was away on interdiction hence the discovery that the accused person was convicted before defence case was heard as he had offered to tender evidence.”
The Star has not independently confirmed whether the magistrate's interdiction referred to in the judgment by Siaya High Court judge Roselyne Aburili was as a result of or related to her handling of this case or from a separate disciplinary process.
To correct the anomaly, the area’s principal magistrate Lyna Sarapai — as required by section 363 of the Criminal Procedure Code — forwarded the trial court file to the Siaya High Court for review.
“She also ordered that the accused be produced before this Court’s Deputy Registrar on February 22, 2023 for further orders,” court papers read.
High Court judge Aburili who reviewed the proceedings, found that “there was a grievous error in law on the part of the trial magistrate in convicting an accused person on a date when his defence was to be taken and before giving him the opportunity to defend himself.”
“Such action deprived the accused person his right to fair trial as guaranteed under Article 50(2) (k) of the Constitution. This was not a mere procedure error. I find that the proceedings were irregularly and improperly conducted,” she said.
The judge ordered that the impugned decision convicting Odiala be quashed and the record of his conviction be expunged from the records.
“…I hereby substitute the order of conviction with an order quashing and vacating and setting aside the entire judgment as pronounced on December 14, 2022 by Hon. C.I. Agutu, Senior Resident Magistrate, and direct that the accused person shall be given the opportunity to tender his defence in the said case against him.”