Kinengeni v Republic (Criminal Appeal 41 of 2009) [2015] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a murder conviction because judges mishandled the trial, freeing the accused after twelve years in custody.
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 abandonment of the assessors mid-trial vitiated the trial which had commenced with the aid of assessors before the repeal of the assessor provisions
- 2.Whether the failure of the succeeding Judge to comply with section 200(3) of the Criminal Procedure Code before taking over a part-heard trial vitiated the trial
- 3.Whether, given the vitiating defects, a retrial should be ordered or the appellant released
Key legal issues
#Trial with assessors abandoned mid-stream
Where a trial commences with assessors before the repeal of the assessor provisions, section 23(3)(e) of the Interpretation and General Provisions Act requires it to continue with assessors to the end; failure renders the trial a nullity.
The trial began on 21st November 2006, before Act No. 7 of 2007 repealed trial with assessors. The assessors fizzled out without any recorded reason, no summing up was done and no opinions taken. Following Peter Ngatia Ruga and Bob Ayub, the Court held the law required three assessors throughout unless an assessor was, to the court's satisfaction, prevented for sufficient cause from attending; otherwise the trial had to start de novo. The defects were fatal.
Non-compliance with section 200(3) of the Criminal Procedure Code on change of trial judge
The duty to inform an accused of the right to demand resummoning and rehearing of witnesses is reposed on the succeeding judge in mandatory terms, whether or not the accused applies; non-compliance vitiates the trial.
Anyara Emukule, J took over a part-heard trial from Lenaola, J without informing the appellant of his section 200(3) rights, and without recording what became of the remaining two assessors. Relying on Ndegwa v Republic, Richard Charo Mole and Cyrus Muriithi Kamau, the Court held the duty rests on the court and that a bare mention in a judgment that section 200(3) was complied with is hollow without record evidence.
Whether a retrial should be ordered
No retrial: the defects were the court's fault, the circumstantial evidence was weak and contradictory, and the appellant had been incarcerated for over a decade.
Applying Ekimat, Muiruri and Ahmed Sumar, the Court weighed the vitiating illegalities, the length of time elapsed, responsibility for the defects and the weakness of the evidence, which rested on contradictory testimony of PW10 and PW11 with no direct evidence of the murder. Both counsel concurred that a retrial would not serve the ends of justice. The Court therefore declared the trial a nullity and ordered release.
Legal principles established
#- A trial commenced with the aid of assessors before the repeal of the assessor provisions must continue with the aid of assessors to its conclusion; abandoning them mid-stream renders the trial a nullity ab initio.
- A succeeding judge taking over a part-heard criminal trial is under a mandatory duty, whether or not the accused applies, to inform the accused of the right under section 200(3) of the Criminal Procedure Code to have witnesses resummoned and reheard; failure to do so vitiates the trial.
- A retrial is ordered only where the interests of justice require it and it is unlikely to cause injustice to the appellant; where the vitiating defects are the court's fault and the evidence is weak, release rather than retrial is appropriate.
Court orders
#- 1.The appellant's trial by the High Court declared a nullity
- 2.The Court declined to order a retrial
- 3.The appellant to be released from custody forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.CR.C. No. 87 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal against a conviction and sentence of death under the Penal Code, pursuant to the Court of Appeal's appellate criminal jurisdiction
Relief refused
#Retrial
Both counsel concurred a retrial was unfit; the circumstantial evidence was weak and contradictory and the appellant had been incarcerated for over a decade
Costs
No order as to costs appears in the judgment; the final order is confined to declaration of nullity and release of the appellant.
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.
In the result and for the reasons given we declare the appellant’s trial by the High Court a nullity but decline to order a retrial. We order the appellant to be released from custody forthwith unless otherwise lawfully held. Order accordingly.
Failure to observe this procedure on the part of the court vitiated the said trial and rendered it a nullity ab initio.
No rule of natural justice, no rule of statutory protection, no Rule of evidence, and no rule of common sense is to be sacrificed; violated or abandoned when it comes to protecting the liberty of the subject as he is the most sacrosanct individual in the system of our legal administration.
the mere mention in the judgment that section 200 (3) was complied with is hollow without any evidence from the record that it was actually complied with in accordance with the law
Issues in the judgment
#The judgment quotes section 23(3)(e) of the Interpretation and General Provisions Act as 'chapter 3 laws of Kenya' in one passage and as 'Chapter 2 Laws of Kenya' in the quoted passage from Bob Ayub, an internal inconsistency in the chapter number.
Typographical error in the final disposition: 'decate' for 'decade'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinengeni v Republic (Criminal Appeal 41 of 2009) [2015] KECA 89 (KLR)", Case Analysis (2015). Criminal Appeal No. 41 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/89/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.