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Court of AppealDismissedCriminal Appeal 81 of 1999

JOHN ANDREA RIZIKI & 16 others v REPUBLIC [2000] KECA 44 (KLR)

Court of Appeal of Kenya
31 March 2000
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Seventeen appellants were charged before a Kibera magistrate with two counts of housebreaking and stealing involving property worth approximately Kshs 1.9 million. After initially pleading not guilty, they changed their pleas to guilty on 1st March 1999. The magistrate, however, failed to record a conviction as mandated by section 207(2) of the Criminal Procedure Code and instead granted each a conditional discharge under section 35(1) of the Penal Code without setting out any conditions. The file was forwarded to the High Court, where Patel, J, suo moto, revised the proceedings on 4th August 1999, set aside what had followed the pleas, and ordered a re-trial of all seventeen. The appellants appealed to the Court of Appeal under section 361(7) of the Code, which deems High Court revisionary orders to be decisions in its appellate jurisdiction, making the appeal a second appeal. Dr. Khaminwa argued that the re-trial order was prejudicial and that the judge should have heard the parties first; Mr. Okumu for the Republic conceded prejudice but defended the order. The Court held that a concession does not bind it, and following R vs. Norbert S/O Mchakatu, that a re-trial order on revision is not prejudicial because it merely restores the accused to their pre-trial position. It further held that no hearing is required before a suo moto revision order. Finding no conviction had been recorded and the discharge grossly inadequate, the Court dismissed the appeal and affirmed the re-trial order.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has appellate jurisdiction to hear an appeal against an order for revision made by the High Court
  2. 2.Whether an order of re-trial made on revision is an order made to the prejudice of the accused persons
  3. 3.Whether the High Court judge was obliged to hear the parties before making the order for revision and re-trial
  4. 4.Whether the learned judge erred in ordering a re-trial of the appellants

Key legal issues

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01

Jurisdiction to appeal against a revisionary order of the High Court

Holding

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.

Reasoning

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.

p. 3
02

Whether an order of re-trial on revision prejudices the accused

Holding

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.

Reasoning

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.

p. 3
03

Whether the High Court must hear parties before revising proceedings suo moto

Holding

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.

Reasoning

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.

p. 3
04

Whether the re-trial order should stand

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 4

Costs

No costs order was made in the judgment

Quotable passages

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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.
p. 4Disposition
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
p. 3Re-trial on revision and prejudice
Setting aside a conviction is not an order made to the prejudice of the appellants.
p. 3Meaning of prejudice under section 364(1)
There is no requirement that a judge of the High Court must hear parties before making an order for revision.
p. 3Suo moto revision without hearing parties
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.
p. 4Grounds justifying re-trial

Issues in the judgment

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minor

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

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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, "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.