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Court of AppealAllowedNot stated in the judgment· [1987] KECA 35 (KLR)

Washingstone Walimulu s/o Masa v Republic [1987] KECA 35 (KLR)

Court of Appeal of Kenya
23 September 1987
1,145 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal (Nyarangi, Gachuhi and Apaloo JJA) allowed a second appeal by an appellant convicted of robbery with violence in three counts and sentenced to seven years' imprisonment on each count plus corporal punishment. The trial magistrate, finding the appellant mentally fit but refusing to attend after an exchange in which the appellant objected to being tried before him, ordered that the trial proceed in the appellant's absence. The appellant's first appeal to the High Court was summarily rejected under section 352(2) of the Criminal Procedure Code. The Court of Appeal held that the appellant's request to be tried by a different magistrate was not discourteous and that an accused, though unable to choose his court, may properly seek trial before another magistrate; the magistrate misdirected himself by not fairly considering the request and by failing to record the relevant exchanges. Applying section 77(1) of the Constitution, the court held that the main criterion of a fair hearing is that the accused attend the trial, put his defence and call witnesses, and that the magistrate acted improperly in excluding the appellant from the entire trial. The proceedings were declared a nullity. The court further held that the grounds of appeal raised issues of law on which the appellant should have been heard, so the High Court's summary rejection was unsustainable. The appeal was allowed, the convictions quashed, and the appellant, in custody since December 31, 1980, ordered set at liberty forthwith unless otherwise lawfully held.

Key legal issues

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01

Whether the trial conducted in the accused's absence was valid

Holding

The magistrate misdirected himself in excluding the appellant from the entire trial; the proceedings were a nullity because they violated the constitutional guarantee of a fair hearing under section 77(1).

Reasoning

The magistrate recorded that the appellant refused to have his case heard before him and ordered the trial to proceed in his absence. The court held the appellant's request to be tried by another magistrate was not discourteous and ought to have been fairly considered and fully recorded. Because the main criterion of a fair hearing is that the accused attend, put his defence and call witnesses, excluding him from the whole trial breached section 77(1) and rendered the proceedings a nullity.

p. 3
02

Whether the High Court properly summarily rejected the first appeal under section 352(2)

Holding

The summary rejection was improper because the grounds of appeal disclosed issues of law on which the appellant should have been heard.

Reasoning

The High Court dismissed the first appeal summarily under section 352(2) of the Criminal Procedure Code. The Court of Appeal examined the eleven grounds of appeal and found they raised issues of law - notably the alleged bias of the trial magistrate and the propriety of trial in absentia - which required the appellant to be heard, so the summary procedure was wrongly applied.

p. 3
03

Whether the appellant applied to be tried by a different magistrate

Holding

On the record the appellant was not being discourteous in applying to be tried by another magistrate, and the magistrate misdirected himself in not appreciating and fairly considering that request.

Reasoning

The court noted the magistrate's own record that the appellant 'refused to have his case heard before this court', but found the magistrate omitted to record the acts constituting the 'scenes' and the exchanges about a Kitale case. An accused shall not choose his court, but such applications are common and may succeed; the failure to appreciate and fairly consider the request was a misdirection.

p. 2

Legal principles established

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  • An accused person cannot choose his court, but may properly apply to be tried by a magistrate other than the one seized of the case; such an application must be fairly considered and fully recorded.
  • A trial conducted in the absence of an accused who was wrongly excluded offends section 77(1) of the Constitution and is a nullity.
  • A first appellate court's summary rejection of an appeal under section 352(2) is improper where the grounds raise issues of law requiring a hearing.
  • The main criterion for fair hearing is the accused's attendance and opportunity to put his defence and call witnesses.

Court orders

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  1. 1.Declaration that the proceedings upon which the appellant was convicted and sentenced are a nullity
  2. 2.The appeal is allowed and the convictions are quashed
  3. 3.The appellant, who has been in jail since December 31, 1980, shall be set at liberty forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Second appellate jurisdiction under the Criminal Procedure Code following summary rejection of the first appeal to the High Court under section 352(2); constitutional issue under section 77(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Washingstone Walimulu s/o Masa v Republic [1987] KECA 35 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/35/eng@1987-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.