18/02/2024
Saleh Omar Nyamache v Republic [2022] eKLR
Have you ever been to a cobbler's working area or a bicycle repair stall and met those human beings who believe they can win any argument anywhere? Sometimes this breed of humans finds its way into courtrooms and meets disaster mundu hu mundu.
The general rule in a criminal trial is that an accused person can only be convicted on the strength of the prosecution's case not on the weakness of his defence. But like every other general rule, there is an exception; you can always do the job for the prosecution.
In this case, the prosecution failed to discharge its burden of proof and the accused was headed for acquittal. No sooner had the accused noticed this than he stepped in and saved the prosecution's reputation by incriminating himself. This is the ruling of the High Court sitting on appeal;
"The trial court considered the evidence of the Prosecution and that of the defence and formed the opinion that the appellant had in his testimony admitted to the charge levelled against him, found him guilty and convicted him.
The prosecution led evidence that the appellant intended to proceed to Somalia to receive training for the purposes of terrorism. From the exhibits presented and the evidence of PW1 and PW2 the same were not clear whether the Appellant had crossed the border or not or whether he had intended to cross the border to Somalia using a refugee card. There was no evidence either of the alleged training and/or receipt of instructions.
However, the appellant in his sworn evidence admitted to having been to Somalia with the intent of receiving military training and having received such training and the intent of joining a military camp in Kismayu.
The Appellant conceded to receiving military training in Somalia. His evidence incriminated him and the same also sustained the charge. In the circumstances it mattered not that the prosecution had failed which indeed they did, neither can the court turn a blind eye or have deaf ears when one says he committed the offence."
The benefit of retaining the services of an advocate is that he remind you that you are in a courtroom not the cobbler's place. He tells you when it is time to sit down and shut up. If you must testify, advocates teach you how to pick your words very carefully. Otherwise, if you want to know how hard earth can become, try confusing the courtroom for the chief's baraza.
Courtesy of Advocate Odhiambo
