JOHN ANDREA RIZIKI & 16 others v REPUBLIC [2000] KECA 44 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the High Court can order a criminal re-trial on its own motion without first hearing the accused.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has appellate jurisdiction to hear an appeal against an order for revision made by the High Court
- 2.Whether an order of re-trial made on revision is an order made to the prejudice of the accused persons
- 3.Whether the High Court judge was obliged to hear the parties before making the order for revision and re-trial
- 4.Whether the learned judge erred in ordering a re-trial of the appellants
Key legal issues
#Jurisdiction to appeal against a revisionary order of the High Court
Section 361(7) of the Criminal Procedure Code confers a right of appeal to the Court of Appeal against orders made by the High Court in its revisionary jurisdiction, and such an appeal is treated as a second appeal.
Dr. Khaminwa drew the Court's attention to section 361(7) of the Code, which expressly deems an order made by the High Court in the exercise of its revisionary jurisdiction to be a decision of the High Court in its appellate jurisdiction. The respondent did not contest this. The Court therefore held that it had appellate jurisdiction over the revision order.
Whether an order of re-trial on revision prejudices the accused
An order of re-trial on revision is not an order to the prejudice of the accused; consequently the accused need not be heard before such an order is made under section 364(1) of the Code.
Following R vs. Norbert S/O Mchakatu, the Court reasoned that the effect of a re-trial order is to set aside the conviction and restore the accused to the position he occupied before trial. Although counsel for the Republic conceded the order was prejudicial, the Court held that a concession does not bind it. Setting aside a conviction is therefore not a prejudicial order.
Whether the High Court must hear parties before revising proceedings suo moto
Section 364(1) of the Criminal Procedure Code empowers the High Court to alter or reverse an order other than an acquittal even where the proceedings come to its knowledge otherwise than on call for the record, without first hearing the parties.
The Court held that the proviso in section 364(1) protecting an accused from prejudicial orders does not apply because a re-trial order is not prejudicial. The section clothes the High Court with revisionary power even where the proceedings come to its knowledge informally, as happened here when the file was forwarded by a magistrate.
Whether the re-trial order should stand
The re-trial order was properly made because the magistrate failed to record a conviction as required by section 207(2) of the Code and imposed a grossly inadequate conditional discharge under section 35(1) of the Penal Code without setting out conditions.
The Court found two clear faults in the magistrate's handling: no conviction was recorded after the plea of guilty as mandated by section 207(2) of the Code, and the conditional discharge under section 35(1) of the Penal Code failed to set out the conditions imposed. The discharge was grossly disproportionate to offences involving property worth nearly Kshs 2 million, occasioning a failure of justice.
Legal principles established
#- An order of re-trial made on revision is not an order to the prejudice of the accused, and the accused need not be heard before such an order is made
- Setting aside a conviction on revision does not constitute an order to the prejudice of the accused
- There is no requirement that a High Court judge hear parties before making an order for revision
- An appeal against an order made by the High Court in its revisionary jurisdiction is treated as a second appeal by virtue of section 361(7) of the Criminal Procedure Code
Court orders
#- 1.The appeal is dismissed
- 2.The order of the High Court (V.V. Patel, J) setting aside the proceedings following the plea of guilty and ordering a re-trial of all the appellants is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Criminal Revision No. 9 of 1999
- Jurisdiction invoked
- Section 361(7) of the Criminal Procedure Code, deeming an order made by the High Court in its revisionary jurisdiction to be a decision in its appellate jurisdiction
Relief refused
#Setting aside of the High Court's order for re-trial
The Court found no fault in the judge's order; there was no conviction recorded and the sentence was grossly inadequate
Costs
No costs order was made 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.
The upshot of all this is that this appeal is dismissed.
an order of re-trial on revision is not an order to the prejudice of the accused and accordingly it is not necessary that the accused be heard before such an order is made
Setting aside a conviction is not an order made to the prejudice of the appellants.
There is no requirement that a judge of the High Court must hear parties before making an order for revision.
we think it was clearly a case where a re-trial ought to have been ordered on the grounds that there was no conviction recorded and that the sentence meted out was grossly inadequate.
Issues in the judgment
#The judgment records the magistrate as 'Mr. A. El-Kindy, a Senior Resident Magistrate' but later refers to 'The Ag. Senior Principal Magistrate Mr. M.M. Muya' forwarding the file, creating some ambiguity as to which magistrate held which rank and who forwarded the file
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOHN ANDREA RIZIKI & 16 others v REPUBLIC [2000] KECA 44 (KLR)", Case Analysis (2000). Criminal Appeal 81 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/44/eng@2000-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.