David Benson Kipkerich Kemei Chumo v Republic [2011] KECA 225 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a murder trial could not legally drop its assessors mid-way, cancelling the conviction but ordering a fresh trial.
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 Judge's mid-trial discharge of the assessors, in reliance on amendments to the Criminal Procedure Code effected by Act No. 7 of 2007, vitiated the trial
- 2.Whether, the trial having been vitiated, a retrial should be ordered
Key legal issues
#Whether repeal of the assessor provisions mid-trial justified dispensing with assessors already empanelled
No. Where the trial began when assessors were part of the law, Section 23(3)(e) of the Interpretation and General Purposes Act applied, and the trial should have continued with assessors to the end. Dispensing with them was a grave misdirection vitiating the trial.
The trial commenced on 4th November 2004 with three assessors empanelled. The amendment (Act No. 7 of 2007, effective 15th October 2007) abolished assessors, but under Section 23(3)(e) of the Interpretation and General Purposes Act the repealed law continued to govern the pending trial. Relying on Peter Ngatia Ruga v Republic, the court held the judge's order dispensing with assessors mid-trial was a grave misdirection rendering the trial a nullity.
Whether a retrial should be ordered despite the vitiated trial
Yes. The evidence against the appellant was strong, witnesses were available, and a successful retrial could be mounted; a retrial was in the best interest of justice.
Although the trial was a nullity, the court declined to acquit. It noted the two deceased were brutally hacked to death, the appellant had been in custody for about seven years, witnesses were easily available being mostly family members, and a successful retrial could be mounted. On those facts, a retrial was in the best interest of justice, and the retrial proceeds without assessors under the post-2007 law.
Legal principles established
#- Where a trial commenced while trials with the aid of assessors were still lawful, a subsequent repeal of the assessor provisions does not dispense with assessors in that ongoing trial; Section 23(3)(e) of the Interpretation and General Purposes Act requires the trial to continue with assessors to the end
- Discharging assessors mid-trial in such circumstances is a grave misdirection that vitiates the trial and renders it a nullity
Court orders
#- 1.The trial is declared a nullity
- 2.The conviction is quashed and the sentence of death is set aside
- 3.The appellant shall be retried before the superior court under the law obtaining after Act No. 7 of 2007, without the aid of assessors
- 4.The appellant is remanded in police custody for 14 days
- 5.The retrial is to be conducted expeditiously
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- H.C.CR.C. No. 21 of 2004
- Jurisdiction invoked
- First appellate jurisdiction over conviction and sentence of the High Court in a murder trial
Relief refused
#Outright acquittal / release of the appellant
The court found the evidence established the brutal murders and that a successful retrial was feasible, so it was in the best interest of justice to order a retrial instead
Costs
No order as to costs is recorded 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.
the provisions of Section 23 (3) (e) of the Interpretation and General Purposes Act (Cap 2 Laws of Kenya) were to be applied and the trial should have continued with the aid of assessors to the end
It must follow, therefore, that the trial the subject matter of this appeal was vitiated and we declare it a nullity.
In those circumstances, we think that it is in the best interest of justice to order a retrial and we do so.
In the result, the appeal is allowed. The conviction is quashed and the sentence of death imposed upon the appellant is set aside.
The appellant shall be re-tried before the superior court and the trial shall proceed under the provisions of the law obtaining after the repeal of the sections relating to the trials with the aid of assessors by Act No. 7 of 2007, that is, without the aid of assessors.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joram Okoth v Leonard O. Odada [2019] KEELC 4062 (KLR)[2019] KEELC 4062 (KLR)21 Mar 2019applied
- Premier Bag & Cardage Limited v Peter Wakabu Wachie [2016] KEELRC 1001 (KLR)[2016] KEELRC 1001 (KLR)5 Jul 2016
- Akarim Agencies Company Limited & 2 others v International Air Transport Association & another [2014] KECA 498 (KLR)[2014] KECA 498 (KLR)27 Jun 2014
Cite this brief
#Cite this brief
Caselaw, "David Benson Kipkerich Kemei Chumo v Republic [2011] KECA 225 (KLR)", Case Analysis (2011). Criminal Appeal No. 115 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/225/eng@2011-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.