Lawson Ole Kupele v Republic [2012] KECA 194 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a murder conviction because part of the trial ran without assessors, but sent the accused back for a fresh trial instead of freeing him.
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 conduct of part of the murder trial without the aid of assessors vitiated the trial
- 2.Whether the amendment to the Criminal Procedure Code repealing trials with assessors applied retroactively to a trial commenced in 2006
- 3.Whether a retrial should be ordered and before whom
Key legal issues
#Retroactivity of the repeal of the assessors procedure
The amendment repealing trials with assessors did not apply to trials commenced before its commencement, which had to continue with assessors
The trial commenced on 26th September 2006 with three assessors properly empanelled. The repeal effected by Legal Notice No. 7 of 2007 came into force on 15th October 2007. Following prior decisions of the Court and section 23 of the Interpretation and General Provisions Act, the amendment was not retroactive, so the trial had to proceed with the aid of assessors throughout.
Effect of conducting part of a capital trial without assessors
The part of the trial conducted without assessors vitiated the entire trial, which was declared a nullity, and the resulting conviction and sentence were set aside
The assessors heard six prosecution witnesses but were absent during the defence hearing, final submissions, and there was no summing up. The accused had a legitimate expectation that they would express opinions on his culpability; their role was an important component of a fair trial which an accused could not be deprived of. Their absence was not explained on the record.
Whether a retrial should be ordered
A retrial was ordered before any High Court Judge other than Kimaru, J., the accused to remain in custody and be produced before the High Court within 14 days
Retrial is discretionary and made in the interests of justice, and is appropriate where a conviction might result on admissible evidence. Remitting to the same Judge was unsuitable as there was no certainty about the whereabouts of the trial Judge or the assessors; the prosecution was ready to mount a fresh trial with witnesses from the same village.
Legal principles established
#- The repeal of the assessors procedure by Legal Notice No. 7 of 2007 was not retroactive; a trial commenced before its commencement had to proceed with the aid of assessors, and a trial partly conducted without assessors is a nullity
- A trial conducted partly with and partly without assessors, without explanation, irreversibly vitiates the whole trial and is a nullity
- An order for retrial is discretionary and made in the interests of justice, and should only be made where, on a proper consideration of admissible or potentially admissible evidence, a conviction might result
Court orders
#- 1.The trial conducted partly without assessors is declared a nullity
- 2.The conviction and sentence meted out to the appellant are set aside
- 3.A retrial is ordered before any Judge of the High Court other than Kimaru, J.
- 4.The appellant shall be detained in prison custody for production before the High Court within 14 days of the order
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- H.C.Cr.C. No. 69 of 2009
- Jurisdiction invoked
- First appellate criminal appeal to the Court of Appeal against a conviction and sentence of the High Court for murder under the Penal Code
Relief refused
#Outright release of the appellant without retrial
The court was persuaded that a retrial would serve the interests of justice, the prosecution being ready to mount a fresh trial
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.
We find and hold that the part of the trial conducted without assessors irreversibly vitiated the whole trial and we declare it a nullity. It follows that the conviction and sentence meted out to the appellant must be and is hereby set aside.
In the circumstances the order that commends itself to us is to order a retrial before any Judge of the High Court other than Kimaru, J. The applicant shall be detained in prison custody for production before the High Court within 14 days of this order.
The purpose of the Assessors is to make sure that, as far as possible in the most serious cases which are tried by the High Court, the decisions of fact have a broad base conforming with the notions of
Issues in the judgment
#The judgment is dated 23rd February 2012 on appeal No. 343 of 2008, but the appeal is stated to be from a High Court decision in H.C.Cr.C. No. 69 of 2009, a case number bearing a later year than the appeal number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawson Ole Kupele v Republic [2012] KECA 194 (KLR)", Case Analysis (2012). Criminal Appeal No. 343 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/194/eng@2012-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.