Robert Fanali Akhuya v Republic [2002] KECA 225 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a death sentence because the magistrate accepted written arguments instead of hearing lawyers argue in open court, ordering a retrial.
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 court acted in accordance with the law by agreeing to written submissions being put in at the conclusion of the appellant's trial.
- 2.Whether the preparation and tender to the court of written submissions by both the prosecutor and defence counsel forms part of the trial so as to be caught up by the provisions of section 77(2) of the Constitution guaranteeing the accused's presence at the hearing.
- 3.Whether the irregularity of receiving written submissions in place of oral address was curable under section 382 of the Criminal Procedure Code.
- 4.Whether, the trial having been found defective, the appellant should be released immediately or a retrial ordered.
Key legal issues
#Whether the Criminal Procedure Code permits final submissions in a criminal trial to be made in writing.
No. Sections 213 and 310 CPC and Part IX provide only for oral address in open court; written submissions are unknown to the legislation and a direction to file them is unlawful.
Sections 213 and 310 CPC use the phrase 'address the court', which in ordinary parlance means oral address, and the Part IX procedures require submissions to be made in open court in the presence of the accused. In no part of the legislation is there mention of written submissions. A presiding officer is expected to orally hear submissions and seek clarification, while the accused must hear them and be able to clarify or object. The fact that the appellant's own counsel requested the procedure did not legitimise it, as the request was made in ignorance of the relevant constitutional provision.
Whether written submissions form part of the trial so as to engage the accused's constitutional right under section 77(2) to be present at the hearing.
Yes. Submissions are part of the trial procedures; receiving them out of court denies the accused the constitutionally entrenched right to listen to, understand and respond to all that is said at his trial.
Section 77(2) of the Constitution makes it mandatory for an accused person to be present at the hearing of his case except where he consents otherwise or his conduct renders continuation in his presence impracticable. Since final submissions are part of the trial, the accused has a constitutional right to listen to and understand them and to clarify or object to any point raised for his benefit. His freedom, and in some cases his life, is at stake. Counsel's request for written submissions could not cure the defect because it was made in ignorance of the Constitution, not in pursuance of it.
Whether the irregularity of accepting written submissions was curable under section 382 of the Criminal Procedure Code.
No. It is a fundamental irregularity going to the root of the conviction, which occasioned a failure of justice and therefore cannot be cured under section 382 CPC.
The court raised the issue suo motu; neither the superior court nor counsel had adverted to it. Because the accused was denied a full and fair hearing - the statutory right of orally persuading the court towards an acquittal - the irregularity occasioned a failure of justice within the meaning of section 382 CPC and so fell outside that section's saving provision. The conviction could therefore not stand and had to be quashed, together with the sentences imposed on all three counts.
Whether a retrial should be ordered or the appellant released immediately.
Exercising its power under section 361 CPC, the court remitted the case for a rehearing before another magistrate competent to hear it, rather than ordering immediate release.
Applying the principle in Njeru v R that whether to order a retrial largely depends on whether the trial was illegal or defective, the court acknowledged that in rare cases circumstances may militate against a retrial and warrant release. Although the appellant had been in custody since 1st August 1995, the offences were serious and the trial magistrate had otherwise conducted the trial well, the only defect being the irregularity over final submissions. The written submissions were expunged and the order giving rise to them set aside, with the matter to be heard afresh according to law.
Legal principles established
#- Final submissions in a criminal trial must be made orally in open court in the presence of the accused; written submissions have no sanction in law, and magistrates and judges must neither ask for nor accept them unless the law expressly sanctions it.
- Submissions are part of the trial procedures: a criminal trial is incomplete unless the record shows that both sides were given the opportunity to address the court, and the accused is constitutionally entitled to hear and respond to all that is said at his trial.
- Taking written submissions in a criminal trial in lieu of oral address in open court is a fundamental irregularity going to the root of the conviction and is not curable under section 382 of the Criminal Procedure Code.
Court orders
#- 1.Appeal allowed.
- 2.Conviction of the appellant on the three counts (attempted robbery with violence, unlawful possession of a firearm and unlawful possession of ammunition) quashed.
- 3.Sentences set aside - the sentence of death on the first count and the imprisonment terms of 5 years and 3 years respectively on the 2nd and 3rd counts.
- 4.The written submissions which were submitted to the trial magistrate expunged from the record, and the order which gave rise to them set aside.
- 5.The appellant to be produced at the earliest possible time before the trial court for fresh hearing dates to be fixed and the matter heard afresh according to law, by way of a rehearing before another magistrate competent to hear the matter.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (referred to in the judgment as 'the superior court', being the first appellate court from the Chief Magistrate's Court at Kakamega)
- Jurisdiction invoked
- Sections 361 and 382 of the Criminal Procedure Code - the Court's appellate power to reverse, alter or revise the decision brought before it by way of appeal and its power to remit the case to the first appellate court or the trial court for determination, whether or not by way of rehearing
Relief refused
#Immediate release of the appellant (rather than a retrial)
Although the appellant had been in custody since his arrest on 1st August 1995, the offences were of a serious nature and the trial magistrate had otherwise conducted the trial well, so the court held it was not a fit case for immediate release and instead remitted the matter for rehearing before another magistrate.
Costs
No costs order was made; the judgment ends with the retrial directions and 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 practice of asking for or accepting written submissions in all manner of judicial proceedings, except where the law expressly sanctions it, must stop forthwith.
A presiding officer of a court is expected to orally hear such submissions as both sides in a criminal case wish to make and to seek clarification of such submissions as found necessary, in order to appreciate each side's case before delivering his opinion.
Consequently magistrates and judges who ask for or accept them are, in effect, denying the accused person a statutory right of orally persuading the court to grant them an acquittal.
This, we think, is a fundamental irregularity which goes to the root of the appellant's conviction. It is not the sort of irregularity which is curable under section 382 CPC.
Consequently we order that the written submissions which were submitted to the trial magistrate be expunged from the record, and the order which gave rise to them be set aside.
The appellant shall be produced at the earliest possible time, before the trial court for fresh hearing dates to be fixed and the matter be heard a fresh according to law.
Issues in the judgment
#The cause title describes the matter as a 'Civil Application' although the judgment determines a criminal appeal against conviction and sentence arising from a criminal trial before the Chief Magistrate's Court at Kakamega.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Fanali Akhuya v Republic [2002] KECA 225 (KLR)", Case Analysis (2002). Civil Application Nai. 194 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/225/eng@2002-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.