Man acquitted due to defective charge sheet, weak evidence

When Samuel Mwaniki Waringa alias Machete was arraigned in 2021, the prosecution referred to the charge of burglary contrary to the law.

It was reported that on May 15, 2021, Waringa broke into a house in Kayole area in Naivasha Sub County, Nakuru County and stole a TV set worth Sh8,000.

He would also make away with Sh25,000, all belonging to one David Maina Kinuthia. 

Prior to the alleged offence, Kinuthia said he heard his neighbors getting attacked and ran out to see what was happening.

Shortly after, someone was seen running away from the plot. They were in a black Marvin cap, a monkey cap covering their face, and of middle height.

Identifying him was difficult not only because of the caps but also because it was dark.

Kinuthia's suspicions were sparked when he returned to his house to find his door open and upon entering, his TV - a Starmax 12 inch was missing and so was his cash.

He made a report to the police station.

Almost a month later on June 12, 2021, the police were tipped of "the spotting of a common thief" and when they went to his house, they found a Starmax TV 32 inch which they took to the station.

They also arrested the house owner - Waringa and later arraigned him at the Chief Magistrate's Court in Naivasha. 

The prosecution called three witnesses.

Waringa however denied the charges, saying he used to sell bhang in Maai Mahiu and he was running his business on June 12 when two officers arrested him.

He told the court that this was not an isolated incident, saying he had been threatened a couple of times.

This had even prompted him to file a complaint letter to the Independent Policing Oversight Authority (IPOA), which he said the police wanted him to withdraw.

When the court deliberated on the case, Waringa was found guilty and was convicted and sentenced to a four-year jail term.

The trial court delivered the judgement on September 29, 2022.

Waringa however challenged the decision arguing that the prosecution did not establish their case beyond reasonable doubt.

He also argued that the trial magistrate erred by convicting him yet failed to find that his defense was believable.  

Waringa told the appellate court that the prosecution had failed to call other witnesses, who had different opinions about the commission of the offence.

This, he added, would have accorded him a chance to be acquitted of the charges of burglary.

On April 4, 2023, the state filed a submission in regard to the appeal, supporting Waringa.

It conceded the appeal on the grounds that the person who was said to have stolen from Kinuthia and the neighbours ran away without being identified as it was dark.

The state also acknowledged that besides Kinuthia, no other witness testified to inform that they could identify the said thief. 

Kinuthia's testimony was also wanting, as he did not say if he locked his house that night in May.

There was also no evidence to show where the Sh25,000 was stolen from or where he had kept it for the thief to have accessed it too fast or without notice.

"The TV receipt produced bore no proof of ownership. It bore no serial number and had nothing to connect the TV to PW1 (Kinuthia)," the state said. 

After receiving the submission, Naivasha High Court's Judge Hedwig Ong'udi however noted that the concession was not grounds to automatically allow the appeal.

He went on to review the case and found that the charge sheet was defective.

"Upon evaluation of the material before this court I find the first anomaly to be with the charge sheet. The appellant (Waringa) was in the main charge only charged with the offence of burglary," the court paper reads.

"He was never charged with stealing of TV and Sh25,000. It follows that when the particulars in the main charge talk of "intent to steal from therein and did steal one TV make Star Max and cash Sh25,000 all valued at Sh33,000 the main charge ought to have had a 2nd limb containing an offence of stealing."

He went on, "There was no limb of stealing in the main charge which is a real misnomer. Particulars can never create an offence."

Judge Ong'udi said the trial magistrate should have rejected the charge sheet or the prosecution ought to have amended it.

"That was never done and so the charge was defective," he added.

The judge further agreed with the submissions of the state on the loopholes in its case and how it was handled.

He noted that Waringa was only a suspect and the prosecution should have given sufficient evidence to support its case.

Delivering his judgement on September 1, 2023, Judge Ong'udi said besides the charge sheet being defective, there was no sufficient evidence to sustain it had it been properly placed before the case.

He quashed the conviction and set the four-year imprisonment sentence aside.

"I therefore find merit in the appeal which I hereby allow. The conviction is quashed and the sentence is set aside. The appellant is to be released forthwith unless lawfully held under a separate warrant," Judge Ong'udi ordered.