Republic v Edward Kirui [2014] KECA 310 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a murder acquittal was wrong but couldn't reverse it; instead, the accused faces a fresh trial on the second murder count.
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 judge's failure to state in respect of which count of the two counts of murder the accused was acquitted contravened section 169(3) of the Criminal Procedure Code
- 2.Whether that failure rendered the entire trial, the proceedings and the resultant judgment a nullity and occasioned a gross miscarriage of justice
- 3.Whether, on the totality of the evidence, the trial judge was right in acquitting the accused on the mistaken ground that the fatal bullet was discharged from a gun bearing a different serial number from the one issued to him
Key legal issues
#Compliance with section 169(3) of the Criminal Procedure Code in an acquittal
The trial judge's judgment did not comply with the mandatory requirements of section 169(3) because it failed to state the offence of which the accused was acquitted, leaving no finding on count II
Section 169(3) requires a judgment of acquittal to state the offence of which the accused is acquitted. The trial judge's judgment dealt almost exclusively with the death of George William Onyango in count I and, despite finding both victims died of gunshot wounds fired with malice aforethought, said nothing further about Ismael Chacha in count II. The court held this left a glaring lacuna and breached the mandatory provision.
Effect of the trial judge's misdirection on the firearm serial number
The acquittal on count I was wrong: the totality of the evidence proved beyond doubt that the accused fired the fatal bullet, and the trial judge erred in treating the differing serial-number descriptions as raising a doubt
The court re-appreciated the evidence and found that the firearm issued to the accused had serial number 23008378 (body number 08378), that the bullet recovered from the deceased was fired from rifle number 3008378, and that the discrepancy in the recorded numbers was a minor clerical matter the trial judge should have resolved. The judge further misdirected himself by distinguishing a factually opposite case and hypothesising an unsupported substitution of the gun.
Whether the failure to make a finding on count II amounted to an acquittal and whether a retrial would offend double jeopardy
There was no acquittal on count II; there was a mistrial on that count, and ordering the respondent to stand trial on count II does not offend the constitutional protection against double jeopardy
Because the trial judge made no finding whatsoever on count II, it could not be said the accused was acquitted on it. Section 77 of the retired Constitution and Article 50(2)(o) of the 2010 Constitution bar retrial of a person previously acquitted or convicted; but the respondent was neither on count II. The court held the failure of the trial judge should not allow such an error of law to go uncorrected.
Miscarriage of justice and the adequacy of section 379(6)
The trial occasioned a great miscarriage of justice, and the court urged Parliament to repeal or amend section 379(6) which renders the Court of Appeal impotent to correct tainted acquittals
The court found the acquittal on count I flew in the face of compelling evidence, depriving the victims, their families and the public of a fair trial. Yet section 379(6) forbids reversal of the acquittal. The court called for urgent legislative measures so that no one escapes justice in tainted acquittals, while noting Uganda had moved legislatively from the same position.
Legal principles established
#- A declaratory judgment on a certified point of law under section 379(5) of the Criminal Procedure Code cannot reverse an acquittal but is binding on all subordinate courts
- Where a trial judge makes no finding on a count of the information, there is neither conviction, sentence nor acquittal on that count and a mistrial exists on it; the accused may be retried on that count without offending double jeopardy
- Non-compliance with section 169 of the Criminal Procedure Code does not automatically vitiate a trial; it entitles the appellate court to examine the facts to determine whether there has been a failure of justice
- It is not double jeopardy to try an accused on a count on which no finding was ever made, where the failure to make findings was that of the trial judge
Court orders
#- 1.A declaration that in respect of count II of the Statement of Offence (the murder of Ismael Chacha) there was a mistrial, there being neither conviction, sentence nor acquittal
- 2.A declaration that the trial of Edward Kirui occasioned a great miscarriage of justice
- 3.That Edward Kirui be arrested and charged before the High Court, before a judge other than Justice F. A. Ochieng, for the murder of Ismael Chacha
- 4.That the acquittal on count I (the murder of George William Onyango) cannot be reversed by virtue of section 379(6) of the Criminal Procedure Code, though declared wrong and unsupported by the evidence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.C. No. 9 of 2009
- Jurisdiction invoked
- Section 379(5) and (6) of the Criminal Procedure Code (declaratory judgment on a point of law of exceptional public importance certified by the Attorney-General), with Article 164(3) of the Constitution
Relief refused
#Reversal of the acquittal on count I (murder of George William Onyango)
Section 379(6) of the Criminal Procedure Code prohibits a declaratory judgment from operating to reverse an acquittal
A declaration that the entire trial and judgment were a nullity
Mere non-compliance with section 169 of the Criminal Procedure Code does not automatically vitiate the 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 therefore declare that in respect of count II of the Statement of Offence there was a mistrial, there being neither conviction, sentence nor acquittal rendered.
We order therefore that Edward Kirui be arrested and charged before the High Court, before a judge of that court other than the honourable Mr. Justice F. A. Ochieng, for the murder of Ismael Chacha.
A declaratory judgment under subsection (5) shall not operate to reverse an acquittal, but shall thereafter be binding upon all courts subordinate to the Court of Appeal in the same manner as an ordinary judgment of the court.
We are agreed that it is not double jeopardy for an accused person, as in this case, to be tried for an offence which would have, but for the failure of the trial judge, been tried and due findings made alongside the other count.
A mere non-compliance with section 169 of the Criminal Procedure Code does not render the entire trial a nullity.
This absurdity, where the Court of Appeal is rendered impotent by statute to correct a glaringly wrong outcome by the High Court must surely call for that urgent repeal of the law. Over to Parliament.
Issues in the judgment
#The judgment contains an internal inconsistency in the firearm serial numbers it recites: the court holds the accused was issued with AK 47 serial number 23008378, yet elsewhere states the trial judge concluded otherwise and also refers to the examined rifle as '3008378'; the various recitals (08378, 23008378, 3008378, 2008378) appear in different passages without full reconciliation in the text itself.
The certificate of the Attorney-General reproduced in the judgment refers to 'section 163(3) (sic)' of the Criminal Procedure Code, whereas the court's actual analysis and the parties' submissions proceeded under section 169(3); the point of law as certified and as determined do not align perfectly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Edward Kirui [2014] KECA 310 (KLR)", Case Analysis (2014). Criminal Appeal No. 198 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/310/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.