Kahindi Charo v Republic [2018] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a murder conviction because the judge excluded assessors after a 2007 law change, freeing the accused after 10 years.
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 exclusion of assessors who had been present since the commencement of the trial, after the Statute Law (Miscellaneous Amendments) Act No. 7 of 2007, occasioned a miscarriage of justice and rendered the trial a nullity
- 2.Whether the prosecution's case was marred by contradictions such that the conviction was unsafe
- 3.If the conviction is quashed, whether a retrial should be ordered
Key legal issues
#Effect of excluding assessors from a trial that commenced with their aid before the 2007 amendment
The trial had to be concluded with the assessors' participation; their exclusion rendered the proceedings a nullity and the conviction could not stand.
Prior to the Statute Law (Miscellaneous Amendments) Act No. 7 of 2007, High Court trials required assessors. Section 23(3) of the Interpretation and General Provisions Act preserves proceedings commenced under repealed law. This Court's settled position, restated in Paul Mutwiri Munene and Charo Karisa Salimu, is that pending trials continue with assessors. The appellant's right to a trial with assessors was an element of a fair trial, not a procedural technicality the judge could waive.
Whether the trial judge erred in treating the exclusion as a procedural technicality and weighing the efficacy of a retrial
The learned judge misapprehended the implication of the exclusion and erroneously took into account the efficacy of a retrial in determining the consequence of the exclusion.
The trial judge justified continuing without assessors on the ground that assessors' opinions were never binding and cited the need for expeditious justice under Article 159(2)(d). The Court of Appeal held the right to assessors was one of the tenets of a fair trial before the amendment and could not be written off as a technicality, and that the desirability of a retrial was an irrelevant consideration in assessing the consequence of the exclusion.
Whether a retrial should be ordered
A retrial was not suitable because it would more likely occasion a miscarriage of justice to an appellant who had been in custody for over 10 years.
Applying Muiruri vs. R, the Court considered the defects in the original trial and the length of time elapsed since arrest and arraignment. Given that the appellant had spent over 10 years in custody, ordering a fresh trial would work an injustice rather than serve the dominant consideration of whether justice would prevail.
Legal principles established
#- Where a criminal trial at the High Court commenced before 15th October 2007 with the aid of assessors, the trial must be concluded with the assessors' participation notwithstanding the repeal of the assessor provisions; their exclusion renders the proceedings a nullity.
- The exclusion of assessors in such a trial is not a mere procedural technicality; the resulting conviction cannot stand.
- Whether a retrial should be ordered depends on the particular facts and circumstances of each case, the dominant consideration being the interests of justice.
Court orders
#- 1.The appeal is allowed
- 2.The appellant's conviction is quashed
- 3.The appellant is set at liberty 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 Malindi
- H.C.CR.C No. 4 of 2007
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence for murder under the Penal Code and the Criminal Procedure Code
Relief refused
#No retrial ordered despite quashing of conviction
A new trial would more likely occasion a miscarriage of justice given the appellant's prolonged custody of over 10 years
Costs
No costs order 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.
This Court's position to date is that where a trial was commenced prior to the amendment with the aid of assessors such a trial should continue to its conclusion with the said assessors.
The appellant's right to have the trial conducted with the aid of assessors could not be written off as a mere procedural technicality since it was one of the tenents of a fair trial before the amendment in question.
The effect of exclusion of assessors in a case such as the one before us is equally settled. The proceedings therein are rendered a nullity
Accordingly, we find that the appeal has merit and is hereby allowed. We quash the appellant's conviction and set him at liberty forthwith unless otherwise lawfully held.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahindi Charo v Republic [2018] KECA 286 (KLR)", Case Analysis (2018). Criminal Appeal No. 53 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/286/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.