119. With regard to the committal proceedings, the Court observes that the
Magistrate delayed to conduct the committal proceedings to facilitate the
Applicants’ trial as soon as practicable as provided under the law. In fact,
following the Magistrates delay to commit the Applicants the first-time round,
the High Court Judge had to remind and order the District Magistrate twice
to conduct committal proceedings, which resulted in prolonging the trial
before the High Court.
120. The Court observes that the Applicants raised the defence of alibi during
the trial, however, the trial judge “considered that defence and pursuant to the
provisions of section 194(6) of the Criminal Procedure Act (the CPA), he took
cognizance of it but proceeded to hold that in view of the strong prosecution
evidence, he accorded no weight to that defence of alibi.” This Court further
notes that the Court of Appeal referencing its own jurisprudence57 agreed
with the trial Judge’s assessment.58
121. The Court observes that there is no justifiable reason as to why following
the Applicants’ arrest, their committal was held three (3) years, four (4)
months and sixteen (16) days later after the preliminary hearing. To
exacerbate the situation, it was the Parties who had to twice remind the High
Court that the committal proceedings had not been finalised and a trial date
set. Additionally, the Court notes that there is nothing on the record to show
that the Applicants impeded the progress of the investigations before their
arraignment at the High Court, the case was not a complex one, there were
no multiple applications filed or adjournments requested as observed from
the record of proceedings. The Applicants were committed on 2 March 2006
and trial at the High Court commended on 27 March 2006. In the
circumstances, the Court finds that the time of six (6) years, ten (10) months
and nineteen days (19) days from the date of arrest to the commencement
of the trial, cannot be considered as reasonable.
57
58
Mwita Mhene and Another v. Republic (Unreported).
Court of Appeal Judgment, page 4.
36