Akhuya v Republic
The bottom line
#Kenya's Court of Appeal ruled that criminal trial submissions must be made orally in open court, quashing a conviction based on written submissions.
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 permitting final submissions in a criminal trial to be filed in writing rather than made orally in open court
- 2.Whether the preparation and tender of written submissions forms part of the trial so as to engage section 77(2) of the Constitution
- 3.Whether the irregularity was curable under section 382 CPC
- 4.Whether a retrial should be ordered
Key legal issues
#Legality of written final submissions in criminal trials
Sections 213 and 310 CPC require submissions to be addressed orally in open court in the presence of the accused; written submissions are unknown to the CPC and unconstitutional
The CPC's phrase 'address the court' means oral address in open court. Section 77(2) of the Constitution entrenches the accused's right to be present and to defend himself, which includes hearing and responding to all submissions. Counsel's consent cannot cure the breach because the request was made in ignorance of the constitutional provision.
Whether the irregularity is curable and the appropriate remedy
The irregularity goes to the root of the conviction and is not curable under section 382 CPC; the conviction was quashed and the case remitted for rehearing before another magistrate
The court distinguished between immediate release and retrial. Although the appellant had been in custody since 1995, the offences were serious and the trial was otherwise well conducted. Relying on its powers under sections 361 and 382 CPC, the court ordered expungement of the written submissions and a fresh hearing.
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 deny the accused a constitutional and statutory right
- A criminal trial is not complete unless the record shows both sides addressed the court orally on the merits
- The irregularity of proceeding on written submissions is a fundamental irregularity going to the root of the conviction and is not curable under section 382 CPC
Court orders
#- 1.Appeal allowed; conviction on the three counts quashed
- 2.Sentences of death on the first count and imprisonment terms of 5 years and 3 years on the 2nd and 3rd counts set aside
- 3.Written submissions expunged from the record and the order giving rise to them set aside
- 4.Case remitted for rehearing before another competent magistrate; appellant to be produced before the trial court at the earliest possible time for fresh hearing dates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C. CR. No 246 of 1998
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code (ss 361 and 382 CPC); the court acted suo motu on a fundamental irregularity
Relief refused
#Immediate release of the appellant instead of a retrial
The offences were of a serious nature and the trial was otherwise well conducted; a rehearing was the appropriate remedy
Costs
No costs order made
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.
Consequently magistrates and judges who ask for or accept them are, in eect, denying the accused person a statutory right of orally persuading the Court to grant them an acquittal.
We do not think that a magistrate or judge should hear in chambers what he has not heard in court, and in certain cases much may be gathered from the tone of the recorded voices of the speakers”.
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 xed and the matter be heard a fresh according to law. Those are our orders.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- EW v Republic[2025] KECA 2299 (KLR)19 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Akhuya v Republic", Case Analysis (2002). Criminal Appeal 42 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/308/eng@2002-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.