Heshima Bebewa v Republic [1999] KECA 197 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that skipping a mandatory step before putting an accused on his defence made the entire murder trial illegal, though a retrial was ordered.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge's failure to comply with section 306 of the Criminal Procedure Code before putting the appellant on his defence rendered the trial illegal
- 2.Whether the post-mortem report was properly excluded under section 77 of the Evidence Act and whether the cause of death could nonetheless be found
- 3.Whether the assessors' opinions ought to have been taken
- 4.Whether a retrial should be ordered in the circumstances
Key legal issues
#Compliance with section 306 of the Criminal Procedure Code
The trial judge's failure to make a finding under section 306 and to inform the appellant of his rights of defence made the whole trial an illegality.
The record showed the judge neither made a finding of not guilty nor informed the appellant, personally or through counsel, of his right to address the court, give evidence, make an unsworn statement or call witnesses. Since the appellant was legally represented, his advocate ought to have been asked whether witnesses as to fact would be called, and the judge was obliged to record all of this. None of it was done before the ruling of 10th July 1998.
Retrial discretion
A retrial was appropriate despite the illegality, given the interests of justice and the facts of the case.
The court applied the established principles from M'Kanake, Fatehali Manji and Wilson Washington Otieno: retrial is ordered only where the original trial was illegal or defective, considering elapsed time and the interests of justice. The offence was committed in 1989 and trial only occurred in 1998, partly due to the appellant's mental state. The retrial was not sought to fill evidential gaps or rectify prosecution faults, so the discretion was properly exercised in favour of a new trial.
Assessors' opinions
The court noted as a defect that the assessors, though part of the trial, were never asked to give their opinions.
Although assessors participated in the trial, the record shows they were not asked to state their opinions on the evidence or the special finding. The court recorded this as an additional irregularity in the trial process, contributing to its conclusion that the trial was defective and that a fresh trial before another judge was required.
Legal principles established
#- A trial judge who finds the accused has a case to answer must comply with section 306 of the Criminal Procedure Code by making a finding and informing the accused of his right to address the court, give evidence, make an unsworn statement and call witnesses; failure to do so is a serious omission rendering the trial illegal.
- A retrial will generally be ordered only where the original trial was illegal or defective, and each case depends on its own facts and circumstances, taking into account the length of time elapsed since the offence and the interests of justice.
Court orders
#- 1.Appeal allowed
- 2.Superior court's special finding set aside
- 3.Appellant to be re-tried on the same charge before another judge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.C. No. 16 of 1995
- Jurisdiction invoked
- First appellate criminal appeal to the Court of Appeal under the Constitution and the Criminal Procedure Code against a special finding of guilty but insane under the Criminal Procedure Code
Relief refused
#Acquittal of the appellant
Although the trial was illegal, the court exercised its discretion to order a retrial rather than an acquittal, considering the interests of justice
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This was a serious omission, which made the whole trial an illegality.
In general a retrial will be ordered only when the original trial was illegal or defective, and each case must depend on its own facts and circumstances
we allow this appeal, set aside the superior court's special finding and order that the appellant be re-tried on the same charge before another judge.
Issues in the judgment
#The judgment states the murder occurred on 7th February 1989, but the appeal is numbered Criminal Appeal No. 42 of 1998 and the trial was H.C.CR.C. No. 16 of 1995, indicating a long gap between offence and trial; the judgment itself acknowledges this delay, so it is internally consistent but chronologically unusual.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Heshima Bebewa v Republic [1999] KECA 197 (KLR)", Case Analysis (1999). Criminal Appeal No. 42 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/197/eng@1999-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.