Moses Otieno Odhiambo & another v Republic [2008] KECA 11 (KLR)
The bottom line
#Kenya's Court of Appeal overturned two murder convictions because the trial assessors never heard all the evidence, but ordered a fresh trial instead of releasing 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 the trial was defective owing to the substitution of assessors who did not hear all the evidence and the subsequent discharge of one assessor leaving only two assessors whose verdict was flawed
- 2.Whether, the appeal having succeeded, a retrial should be ordered
Key legal issues
#Defectiveness of the trial process owing to replacement of assessors
The trial was defective because the original assessors were substituted without explanation and the new assessors did not hear the evidence of Dr. Njau, the first prosecution witness
The record showed the assessors selected in February 2004 were not the same persons who sat from February 2005 onwards. No explanation appeared in the superior court record for the substitution, nor for why Dr. Njau was not recalled before the new assessors. The State conceded the trial was defective and sought a retrial. The assessors' verdict was therefore flawed as they heard only part of the evidence.
Whether a retrial should be ordered on an allowed appeal
A retrial before a different judge sitting without assessors was ordered as the just and fair outcome
Although the appellants had been in custody for some five years, the court weighed the seriousness of the offence, the death of a person, the State's assurance that witnesses would remain available, and the fact that the High Court judgment was recent, concluding that a retrial was just and fair in all the circumstances.
Legal principles established
#- Where assessors are substituted mid-trial, the new assessors must hear all the evidence; a verdict by assessors who did not hear part of the evidence renders the trial defective
- A retrial may be ordered notwithstanding a successful appeal where the interests of justice, including the gravity of the offence and availability of witnesses, so require
Court orders
#- 1.Appeal of each appellant allowed
- 2.Conviction recorded against each appellant set aside
- 3.Sentences of death set aside
- 4.Appellants to be tried afresh before a different judge sitting without assessors
- 5.Appellants to be detained in prison custody pending the new trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- H.C.CR.C. No. 15 of 2003
- Jurisdiction invoked
- First appellate criminal appeal against conviction and sentence of the High Court (Criminal Appeal 3 of 2007, Court of Appeal at Kisumu)
Relief refused
#Counsel's request that no retrial be ordered given that the appellants had been in custody for some five years
The court considered the loss of life, the availability of witnesses and all relevant circumstances, and found a retrial just and fair
Costs
No costs order 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.
We accordingly allow the appeal of each appellant, set aside the conviction recorded against each one of them and also set aside the sentences of death.
We substitute those orders with one that the appellants shall be tried afresh before a different judge who shall sit without assessors because that institution has now been abolished.
Pending the new trial, the appellants shall be detained in prison custody.
It is clear from these names that these were not the same people who had been selected as assessors between 4th and 6th February, 2004 and who heard the evidence of Dr. Njau on 8th July, 2004.
Issues in the judgment
#The judgment is dated and delivered on 28th November 2008 although the cause paper and appeal-from details are dated 27th November 2006 (the High Court judgment); no internal contradiction arises, but the delivery date differs from the certification context
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Otieno Odhiambo & another v Republic [2008] KECA 11 (KLR)", Case Analysis (2008). Criminal Appeal 3 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/11/eng@2008-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.