CHARO KATANA KITSAO v REPUBLIC [2007] KECA 214 (KLR)
The bottom line
#A murder conviction collapsed because the trial judge never explained the evidence to his lay assessors, but Kenya's Court of Appeal still ordered 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 learned trial Judge erred in law by failing to sum up the evidence to the assessors and give them proper directions before receiving their verdict, and whether that omission rendered the entire trial a nullity (mistrial).
- 2.Whether, the conviction having been quashed as a mistrial, a retrial of the appellant should be ordered.
Key legal issues
#Whether failure to sum up the evidence to the assessors, without a special and compelling reason, renders a High Court trial a mistrial.
Yes. Although section 322(1) of the Criminal Procedure Code is couched in the discretionary word 'may', summing-up to assessors has acquired the force of law and is obligatory. The trial judge merely requested the assessors' opinions without any summary of the evidence and no special or compelling reason was recorded; the entire trial was a mistrial and the conviction and sentence fall with it.
The court reasoned that assessors can only be of use if they give informed opinions, which they can form only if the judge sums up the whole evidence and directs them on issues of law; the summing-up must not only be done but must be seen to be done. Following Joseph Mwai Kungu, the practice has acquired the force of law, and departure requires a special and compelling reason on the record. The record showed no written summary and none was offered; the State conceded the omission amounted to a mistrial.
Whether a retrial should be ordered once the conviction is quashed for that failure.
Yes. A retrial was ordered before another competent court, the appellant to be produced before the superior court at Malindi within fourteen days of the judgment.
Drawing on Ahmed Sumar, the court held that where a conviction is vitiated by a defect for which the prosecution is to blame no retrial will be ordered, but a mistake of the trial court does not bar one. Applying the settled principles that each case turns on its facts and retrial lies only where the interests of justice require and a conviction might result, the court found that the mistrial was occasioned by the trial court's error, a person lost his life, the State assured witnesses would be available, and the recorded evidence might well sustain a conviction, distinguishing Fundi Reuben Ngala.
Legal principles established
#- In trials before the High Court with the aid of assessors, summing-up of the evidence to the assessors is mandatory: it has acquired the force of law, and a trial judge may depart from it only for some special and compelling reason appearing on the record.
- A High Court trial conducted without any summing-up to the assessors, and without a recorded special and compelling reason for the omission, is a mistrial; any conviction and sentence founded on such a trial must be quashed and set aside.
- Whether to order a retrial after quashing a conviction is a fact-specific discretion: a retrial may be ordered where the vitiating defect is the trial court's mistake rather than a defect for which the prosecution is to blame, where the admissible evidence might sustain a conviction, and only where the interests of justice require it and no injustice would be caused to the accused.
Court orders
#- 1.The conviction of the appellant on the charge of murder is quashed.
- 2.The sentence of death is set aside.
- 3.A retrial of the appellant is ordered before another competent court.
- 4.The appellant is to be produced before the superior court at Malindi for his retrial within the next fourteen (14) days of the date of the judgment.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C. CR. C. No. 4 of 2001
- Jurisdiction invoked
- Not expressly invoked in the judgment; the appeal is a first appeal to the Court of Appeal at Mombasa against a conviction and death sentence imposed by the High Court at Malindi in exercise of its original criminal jurisdiction over murder (Penal Code sections 203 and 204).
Relief refused
#The appellant's opposition to a retrial, i.e. his request that upon quashing of the conviction he be released without facing the charge again, on the ground that he had been deprived of liberty for close to seven years since his arrest on 9th February 2000.
The court weighed the deprivation of liberty against the need for justice, the Principal State Counsel's assurance that witnesses would be available for an early disposal of the retrial, the fact that the mistrial was occasioned by the trial court's error rather than any fault of the prosecution, the loss of a life, and that the recorded evidence might well sustain a conviction.
Costs
No order as to costs was made; the judgment is silent on costs, this being a criminal appeal.
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.
Summing up to the assessors has gained the force of law and is now a must.
In other words, there must be on record evidence that summing-up to the assessors was undertaken or that there was some special and compelling reason why that was not done.
That being our view of the matter, we agree that the entire trial was a mistrial. We quash the conviction and set aside the sentence.
It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not, in our view follow that a retrial should be ordered.
Unlike in the case of Fundi Reuben Ngala v. Republic Cr. Appeal No. 268 of 2006 (unreported) the recorded evidence available might well sustain a conviction.
The totality of all the above is that we order a retrial of the appellant before another competent court. The appellant will be produced before the superior court at Malindi for his retrial within the next fourteen (14) days of the date hereof.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CHARO KATANA KITSAO v REPUBLIC [2007] KECA 214 (KLR)", Case Analysis (2007). Criminal Appeal 269 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/214/eng@2007-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.