The Court of Appeal in Mombasa has dismissed an appeal by the State, upholding the acquittal of three men charged with the murder of Harrison Bekanga Munga in 2015.
The appellate judges— Kibaya Imaana Laibuta, F. Ochieng, and Ngenye-Macharia—ruled unanimously that the continued delays in prosecuting the case violated the accused persons’ right to a fair and speedy trial, as enshrined in the Constitution.
The case that refused to move
It all began on June 2, 2015, in Dzivani Village, Gandini Location, Kwale, where Munga was allegedly murdered.
Ahmed Njeka Munga, Rumba Chigamba, and Ngao Tsuma were subsequently arrested and charged with murder.
Initially, Munga and Chigamba pleaded not guilty on October 26, 2015, and were granted bond a month later.
The case faced repeated delays, with Tsuma joining the trial in May 2017, prompting a fresh plea from all the accused.
Despite the seriousness of the charge, only two prosecution witnesses had testified by 2020.
Court proceedings were frequently adjourned—sometimes due to missing witness statements, at other times because the court did not sit.
The protected nature of some witnesses further complicated matters.
On one occasion, the hearing was slated for February 3, 2017, but due to numerous adjournments, the first prosecution witness, who was marked as a protected witness, was to testify on December 10, 2019.
On the said date, the hearing aborted because the defence was not supplied with the protected witness’s statements. He was stood down.
The second prosecution witness testified, but was equally stood down on the basis that there was no original handwritten witness statement to enable the prosecution to proceed further.
By this time, two years had lapsed since the respondents took plea.
On February 13, 2020, the two prosecution witnesses testified, but the court adjourned, setting the next hearing for March 25, 2020.
However, for unknown reasons, the court did not sit again until December 16, 2020.
The court noted that there was no appearance for any of the accused persons on this date.
In 2021, there were several adjournments, and on February 10, 2022, the prosecution was not ready to proceed with the hearing, indicating that it did not have its witnesses in court.
A court fatigued
By February 2022, the trial judge had had enough.
The prosecution again sought an adjournment, citing the unavailability of witnesses.
Defense lawyers, frustrated by the seven years since the case began, strongly opposed the request.
The judge closed the prosecution’s case. The court ordered that the prosecution’s case be closed as follows: “Prosecution’s case is closed.
Yet, the case was later reopened, though no formal record of this decision was entered.
On June 9, 2022, the court issued summons for the investigating officer, Corporal Adan Roba, but he and other key witnesses, including a firearms examiner and a ballistics expert, failed to appear in court on the scheduled day.
The defence counsel again opposed the adjournment, arguing that the State had been given ample opportunity. The court agreed and re-closed the case.
“This court re-opened the prosecution’s case to enable it to avail its witnesses, considering the evidence that had been adduced by the three prosecution witnesses. In consideration of the above, this court has no otherwise than to order the prosecution’s case closed,” the trial judge ruled.
In a final ruling delivered on October 24, 2022, the trial court acquitted the three accused persons under Section 210 of the Criminal Procedure Code.
The court concluded that the evidence from the first two witnesses did not meet the legal threshold to put the accused on their defence. The case was dismissed.
“The prosecution’s case is therefore dismissed and accused persons acquitted under section 210 Criminal Procedure Code,” the court ordered.
State's last-ditch appeal
Unhappy with the acquittal, the Office of the Director of Public Prosecutions filed an appeal at the Court of Appeal in Mombasa, arguing that the delays were caused by interference from the accused and not State negligence.
State Counsel argued that witness intimidation, especially of the second prosecution witness who appeared “visibly distressed,” contributed to the breakdown of the case.
She stated that the investigating officer had previously sworn an affidavit opposing bail, citing interference by the accused.
She pleaded with the appellate court to allow the reopening of the case so that all witnesses could be heard and justice served.
However, the respondents' lawyer dismissed these claims, stating that the allegation of interference was never substantiated in court.
The lawyer further noted that the investigating officer never testified, and that no explanation had been offered for the prosecution’s repeated failure to present key witnesses.
Court’s verdict
In its detailed ruling, the appellate court considered the central question: Was the trial court at fault in closing the case due to delays?
The judges acknowledged the seriousness of the murder charge, describing it as “a matter involving the sanctity of life.”
They, however, emphasised that the right to a fair trial, which includes a trial without unreasonable delay, must be respected for both the accused and the public as represented by the State.
Citing precedents from Kenyan and international courts, including the Supreme Court’s decision and a South African case where a 15-year delay undermined the prosecution’s credibility, the judges highlighted the irreparable damage caused by prolonged trials.
“A speedy trial ensures that the rights of the accused person are secured… It also protects the interests of the public, including victims and witnesses,” the judges noted.
The appellate court noted that in this case, the delay had stretched over eight years. Even after being granted a fresh opportunity, the prosecution failed to produce crucial witnesses, including the investigating officer and forensic experts.
The court described the prosecution’s conduct as “casual” and lacking seriousness.
“The explanation, coupled with the fact that there has been a significant delay in the trial, leads us to conclude that reopening of the trial proceedings would be a mere gamble,” the judges stated.
They also noted the social prejudice faced by accused persons in long-running criminal cases, including loss of liberty, stigma and disruption of life.
“We emphasise that the reasons why the right to a trial within a reasonable time was prescribed as one of the fundamental rights of an accused person under the Constitution was the enduring impact that the prosecution process may jeopardise or impair the benefits of the presumption of innocence,” the judges said.
“It is likely that a long-drawn criminal trial which does not seem to see the light of day will result in doubt being sown as to an accused’s integrity in the eyes of his family, friends and the public.”
The judges noted that the prosecution ought to have borne in mind that a speedy trial works in favour of the State as well as it renders the criminal justice system more coherent and fairer by mitigating the tension between the presumption of innocence and the publicity of trial.
“Given the stated circumstances, justice tilts against the re-opening of the trial. In the end, we find that this appeal lacks merit and is hereby dismissed,” the judges stated.
In dismissing the appeal, the Court of Appeal sent a clear message to prosecutors: justice delayed is indeed justice denied, for both victims and the accused.
