JOHN ANDREA RIZIKI,PAUL NJUGUNA NG'ANG'A,JULIUS PAUL KANGETHE,PETER MWANGI NG'ANG'A,STEPHEN NJOROGE MUCHERU,KAMAU MWANGI GERALD,JAMES ERERE NJINE,FREDRICH MARITHI NJERU,PATRICK CHEGE GITHUMA,DAVID GIKUMA WAWERU,DANIEL KAMAU KIMANI,AMOS NJORO,DAVID MU [2000] KECA 273 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that High Court judges can order a criminal re-trial on their own initiative 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 jurisdiction to hear an appeal against an order for revision made by the superior court.
- 2.Whether an order of re-trial is an order made to the prejudice of the appellants (identified by the Court as the prime issue falling for decision).
- 3.Whether it was the duty of the superior court to hear not only the appellants but also the prosecution before making the orders made on revision.
- 4.Whether the learned Judge erred in setting aside the proceedings following the pleas of guilty and ordering a re-trial of all the appellants.
Key legal issues
#Jurisdiction to appeal against a High Court revision order.
The Court of Appeal has appellate jurisdiction over revision orders of the superior court by virtue of section 361(7) of the Criminal Procedure Code, and such an appeal is to be treated as a second appeal.
Dr. Khaminwa pointed to section 361(7) of the Code, which expressly confers a right of appeal against orders made by the High Court in its revisionary jurisdiction by deeming them decisions in its appellate jurisdiction. Counsel for the Republic did not take issue on the point. The Court therefore entertained the appeal, characterising it as a second appeal.
Whether an order of re-trial is an order made to the prejudice of the accused.
No. Setting aside a conviction and ordering a re-trial restores the accused to the position occupied before trial and is therefore not an order to the prejudice of the accused; consequently no hearing was required before the order was made.
The Court adopted the reasoning in R vs. Norbert S/O Mchakatu, that the effect of a re-trial order is to set aside the conviction and restore the accused to his pre-trial position. The Republic's concession that the order was prejudicial did not bind the Court. Since a re-trial order is not prejudicial, the protection in section 364(1) of the Code requiring a hearing before a prejudicial order was not engaged.
Whether the High Court judge was obliged to hear the parties before making the order for revision.
There is no such requirement; the High Court may act on its own motion under section 364(1) of the Code.
Section 364(1) empowers the High Court to alter or reverse any order other than an order of acquittal, even where the proceedings in the Magistrate's Court come to its knowledge otherwise than in the course of calling for the proceedings or a report. The obligation to hear an accused arises only where the order would prejudice him, and a re-trial order was held not to be such an order.
Whether the learned Judge erred in ordering a re-trial of the appellants.
No. The re-trial was warranted on the grounds that no conviction was recorded and the sentence meted out was grossly inadequate.
Although the judge may have arrived at his decision by a different route, the Court held it was clearly a case where a re-trial ought to have been ordered. The magistrate had accepted guilty pleas and the facts but never recorded a conviction as mandated by section 207(2) of the Code, and the conditional discharge was grossly disproportionate to offences involving property worth about Kshs 1.9 million, occasioning a failure of justice.
Correct procedure on a plea of guilty and on conditional discharge.
On a plea of guilty the court must record the admission and convict under section 207(2) of the Code before passing sentence; a conditional discharge under section 35(1) of the Penal Code must set out the condition imposed.
The magistrate entered pleas of guilty, recorded the facts as narrated by the prosecution which the appellants accepted, but instead of first recording a conviction listened to mitigation and gave each appellant a conditional discharge without setting out any conditions. The Court found the sentencing procedure amazing and held it could be clearly faulted in two ways, which vitiated the proceedings and justified the revision and re-trial.
Legal principles established
#- The Court of Appeal has appellate jurisdiction over orders made by the High Court in the exercise of its revisionary jurisdiction, and such an appeal is treated as a second appeal.
- 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.
- There is no requirement that a judge of the High Court hear parties before making an order for revision; under section 364(1) of the Criminal Procedure Code the High Court may alter or reverse a subordinate court's order even where the proceedings come to its knowledge otherwise than on a call for the record.
- Where an accused pleads guilty, the magistrate must record a conviction as mandated by section 207(2) of the Criminal Procedure Code before sentencing, and a conditional discharge under section 35(1) of the Penal Code must set out the condition imposed.
Court orders
#- 1.The appeal is dismissed.
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 - an order made by the High Court in the exercise of its revisionary jurisdiction is deemed a decision of the High Court in its appellate jurisdiction, conferring a right of appeal to the Court of Appeal; the appeal is treated as a second appeal.
Relief refused
#Setting aside of the High Court order of 4th August 1999 which revised the proceedings and ordered a re-trial of the appellants.
The Court found no fault in the re-trial order; a re-trial was warranted because no conviction had been recorded and the sentence meted out was grossly inadequate.
A declaration that the re-trial order was made to the prejudice of the appellants and that they were entitled to be heard before it was made.
Following R vs. Norbert S/O Mchakatu, a re-trial order on revision is not an order to the prejudice of the accused, so no hearing was required under section 364(1) of the Code.
Costs
No costs order was made; the judgment contains no order as to costs.
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.
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.
Section 364(1) of the Code clothes the High Court with power to alter or reverse an order other than an order of acquittal, even in cases where the proceedings in the Magistrate's Court come to its knowledge otherwise than in the course of calling for the proceedings or report made thereon.
Such an appeal, as is before us now, is therefore to be treated as a 'second appeal'.
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.
Mr. Muya, was in our view, justified in thinking that the sentences meted out by Mr. El-Kindy had occasioned a failure of justice which concern had led the complainants to fear that the said Magistrate had been compromised.
Issues in the judgment
#Internal tension in the judgment's characterisation of the revision order: the Court expressly finds that the magistrate recorded no conviction, yet later states that the appellants' convictions were set aside by the revision order.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOHN ANDREA RIZIKI,PAUL NJUGUNA NG'ANG'A,JULIUS PAUL KANGETHE,PETER MWANGI NG'ANG'A,STEPHEN NJOROGE MUCHERU,KAMAU MWANGI GERALD,JAMES ERERE NJINE,FREDRICH MARITHI NJERU,PATRICK CHEGE GITHUMA,DAVID GIKUMA WAWERU,DANIEL KAMAU KIMANI,AMOS NJORO,DAVID MU [2000] KECA 273 (KLR)", Case Analysis (2000). Criminal Appeal No. 81 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/273/eng@2000-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.