Benard Kinoti M’arachi v Republic [2008] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a murder conviction because a discharged assessor was improperly allowed back into the trial, ordering a fresh retrial instead of release.
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 was conducted irregularly with respect to the aid of assessors, rendering it a nullity
- 2.Whether the trial Judge erred in abandoning the summing up to the assessors upon the abolition of assessors by the Statute Law (Miscellaneous Amendments) Act 2007 before conclusion of the trial
- 3.Whether the discharge and subsequent re-admission of the third assessor breached section 298(1) of the Criminal Procedure Code
- 4.Whether the conviction should be set aside and, if so, whether a retrial should be ordered
Key legal issues
#Effect of conducting a trial with assessors inconsistently with sections 262, 263 and 298(1) of the Criminal Procedure Code
The discharge of an assessor and his subsequent resumption of participation in the trial breached section 298(1), rendering the trial a nullity
Section 298(1) permitted a trial to proceed with fewer assessors only where an assessor was prevented from attending or absented himself and his attendance could not immediately be enforced. Here the Judge discharged the 3rd assessor for failure to appear, yet he was present on 7th June 2006 and was allowed to resume. Allowing a discharged assessor back exceeded the section's qualification and vitiated the trial.
Whether the trial Judge could abandon the summing up to assessors because the Statute Law (Miscellaneous Amendments) Act 2007 abolished assessors mid-trial
This was a misdirection; assessors who had sat throughout a trial commenced under the old law remained entitled to give their opinions notwithstanding the subsequent abolition
The trial began on 27/10/2005 when the assessors regime was in force and the assessors participated throughout. Retroactive application of the 2007 amendment to cut short their role prejudiced the fairness of the trial. The Judge's decision not to have a summing up was therefore erroneous, independent of the nullity arising from the assessor's discharge and return.
Duty of a first appellate court on reconsideration of evidence
A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, with due allowance for not having seen or heard the witnesses, but will not normally interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles
Relying on established authority including Okeno v Republic and Ogeto v Republic, the court restated that a first appeal is by way of rehearing on the evidence. Findings of fact by the trial court attract deference unless demonstrably unsupported or reached on wrong principles. These standards were cited but the appeal succeeded on the procedural nullity rather than on the facts.
Whether to order a retrial after quashing the conviction
A retrial was ordered before a Judge other than Sitati, J because the witnesses, being family members, could readily be found
The State, through Mr Orinda, conceded the trial was a nullity and sought a retrial, noting the witnesses are family members who can be found easily. Counsel for the appellant opposed a retrial, citing delay of about five years and witnesses having retired. The court balanced these considerations and, given the family-based nature of the case, ordered a retrial before a different judge.
Legal principles established
#- Where a trial with assessors commenced while the law requiring assessors was in force, the assessors were entitled to give their opinions notwithstanding the subsequent abolition of assessors by statute before completion of the trial
- Once an assessor is discharged under section 298(1) of the Criminal Procedure Code, allowing that assessor to resume and take part in the trial breaches section 298(1) and renders the trial a nullity
Court orders
#- 1.The appeal is allowed
- 2.The conviction for murder is quashed
- 3.The sentence of death is set aside
- 4.A retrial is ordered before a Judge of the superior court other than Sitati, J
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.CR.C. No. 175 of 2003
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code over an appeal from the High Court's original criminal jurisdiction (murder conviction under sections 203 and 204 of the Penal Code)
Relief refused
#Outright release/acquittal of the appellant without retrial
Given that the offence was committed against a family member and most witnesses are family members who can be found, the court ordered a retrial instead
Costs
No costs order was made in the judgment.
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.
In the result we allow this appeal, quash the conviction and set aside the sentence. However, given the facts and circumstances of the alleged offence said to have been committed against a family member, presumably because of a land dispute, and most of the witnesses being family members, we hereby order a retrial before a Judge of the superior court other than Sitati, J.
the decision by the learned Judge to discharge one assessor on 27th March, 2006, for failure to appear in court, and subsequently allow him to resume and take part in the trial from 7th June, 2006, breached the provisions of section 298(1) of the Criminal Procedure Code and thus rendered the trial a nullity, as was submitted by Mr. Orinda, Principal State Counsel.
With the greatest respect to the learned Judge, we find that this was a misdirection as the trial commenced when the law requiring trial with assessors was in force, and the assessors had taken part throughout, though not all three were present all the time as we have pointed out.
Nevertheless a Court of Appeal will not normally interfere with findings of fact by the trial court, unless they are based on no evidence or misapprehension of the evidence, or the trial Judge is shown demonstrably to have acted on wrong principles in reaching the decision
Issues in the judgment
#The record contains internal inconsistency as to the presence of assessors: the trial proceeded on 27th March 2006 with only two assessors, yet on 7th June 2006 'Surprisingly all the three assessors were present in court that day and participated in the trial' after the third assessor had been discharged
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Kinoti M’arachi v Republic [2008] KECA 4 (KLR)", Case Analysis (2008). Criminal Appeal 114 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/4/eng@2008-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.