Benson Owino olonde v Republic [2012] KECA 138 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a murder conviction because the new judge wrongly dropped the assessors, but ordered the men face 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 trial was vitiated when the trial Judge, who took over midstream from the late Bauni, J, continued the murder trial without assessors after the provision for trial with assessors had been repealed, without complying with section 261(2) as read with section 200(3) of the Criminal Procedure Code or section 23(e) of the Interpretation and General Provisions Act
- 2.Whether, the conviction and sentence having been set aside, the appellants should be set free or a re-trial ordered
Key legal issues
#Continuation of a part-heard murder trial without assessors after a change of Judge and after repeal of the assessor provisions
The failure by Musinga, J to comply with section 261(2) as read with section 200(3) of the Criminal Procedure Code and section 23(e) of the Interpretation and General Provisions Act, and his failure to mention the assessors at all, were grave errors that vitiated the trial, rendering the conviction and sentence unsustainable.
The trial began before Bauni, J with the aid of assessors, as the law then required, and six witnesses were heard with assessors. After Bauni, J died, Musinga, J resumed the trial on 23rd September 2008, by which time the Statute Law (Miscellaneous Amendments) Act, 2007 had abolished assessors. The Court held the repeal was not retrospective; the right to trial with assessors at the time the trial started had to be honoured, and the successor Judge was bound to continue with assessors. Neither statutory provision was complied with and no reasons were given for dropping the assessors. This was a point of law the Court could act on even though counsel had not raised it.
Appropriate remedy where a trial is vitiated mid-appeal - acquittal or re-trial
Despite the vitiating errors, the Court ordered a re-trial rather than an acquittal, declining the appellants' submission that they be set free after six years in custody, and directed that the re-trial be before a Judge other than Musinga, J and need not be with assessors.
The Court acknowledged counsel's submission that the appellants should be released given their six years in custody, but exercised its discretion in favour of a re-trial as an appropriate course. It ordered priority hearing dates, remanded the appellants in custody pending production before the retrial court, and excluded Musinga, J. It also clarified that the re-trial itself need not be with assessors because the law changed in 2007 - distinguishing between the retrospective protection of the completed part of the original trial and the law governing the fresh trial.
Legal principles established
#- Where a murder trial commenced with the aid of assessors, a Judge taking over the trial midstream after the repeal of the assessor provisions must comply with section 261(2) as read with section 200(3) of the Criminal Procedure Code and section 23(e) of the Interpretation and General Provisions Act, Cap 2, and continue the trial with assessors; failing which the trial is vitiated.
- The repeal abolishing trial with the aid of assessors did not have retrospective effect on trials already begun with assessors.
Court orders
#- 1.The conviction and sentence of the appellants are set aside
- 2.The appellants shall be tried before any Judge of the High Court other than Musinga, J
- 3.Pending their production before the court, the appellants shall be held in prison custody
- 4.Hearing dates for the re-trial to be given on a priority basis
- 5.The re-trial need not be with the aid of assessors since the law changed in 2007
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H. C. Cr. A. No. 56 of 2003
- Jurisdiction invoked
- Second appellate jurisdiction over a criminal appeal from the High Court under the Criminal Procedure Code
Relief refused
#Counsel's submission that the appellants should be set free after some six years in custody
The Court considered this an appropriate case for a re-trial rather than an acquittal
Costs
No order as to costs 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.
The effect of the above two grave errors is that the trial was vitiated. The resulting conviction and sentence cannot stand, and the same are hereby set aside.
that repeal, like most other legal provisions, did not have retrospective effect. It was, in our view, improper for the learned Judge to drop the assessors and even worse, to fail to give any reasons as to why he did so.
Accordingly, we order that the appellants shall be tried before any Judge of the High Court other than Musinga, J. Pending their production before the court, the appellants shall be held in prison custody.
The retrial need not be with the aid of assessors since the law on this respect changed in 2007.
Issues in the judgment
#The judgment refers to the appellant in the singular feminine ('was denied her midstream') although two appellants were before the Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Owino olonde v Republic [2012] KECA 138 (KLR)", Case Analysis (2012). Criminal Appeal 610 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/138/eng@2012-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.