Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 53 of 2017

Kahindi Charo v Republic [2018] KECA 286 (KLR)

Court of Appeal
20 September 2018
2,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The appellant was convicted of the murder of his wife, Sidi Benjamin Shaha, and sentenced to death by the High Court at Malindi (A.H. Omondi, J.) in a judgment dated 7th August 2011. The trial had commenced before Ombija, J. with the aid of three assessors, but after A.H. Omondi, J. took over, the assessors were excluded from the remainder of the trial without reason. On appeal, counsel for the appellant argued that the exclusion rendered the proceedings a nullity, relying on the settled Court of Appeal position in Charo Karisa Salimu vs. R and Paul Mutwiri Munene vs. R that trials commenced before the Statute Law (Miscellaneous Amendments) Act No. 7 of 2007 abolished assessors had to be concluded with them. The trial judge had treated the omission as a procedural technicality under Article 159(2)(d), weighing also the delay and the appellant's prolonged custody. The Court of Appeal held that the right to trial with assessors was a tenet of a fair trial that could not be written off as a technicality, and that, by virtue of Section 23(3) of the Interpretation and General Provisions Act, the repeal did not affect pending trials. The exclusion therefore rendered the trial a nullity and the conviction could not stand. On the question of a retrial, applying Muiruri vs. R, the Court found a retrial unsuitable because the appellant had been in custody for over 10 years. The appeal was allowed, the conviction quashed, and the appellant set at liberty forthwith unless otherwise lawfully held.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the prosecution's case was marred by contradictions such that the conviction was unsafe
  3. 3.If the conviction is quashed, whether a retrial should be ordered

Key legal issues

#
01

Effect of excluding assessors from a trial that commenced with their aid before the 2007 amendment

Holding

The trial had to be concluded with the assessors' participation; their exclusion rendered the proceedings a nullity and the conviction could not stand.

Reasoning

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.

p. 2
02

Whether the trial judge erred in treating the exclusion as a procedural technicality and weighing the efficacy of a retrial

Holding

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.

Reasoning

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.

p. 3
03

Whether a retrial should be ordered

Holding

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.

Reasoning

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.

p. 3

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. 1.The appeal is allowed
  2. 2.The appellant's conviction is quashed
  3. 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.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
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

p. 3

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.
p. 2Continuation of trials with assessors after repeal
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.
p. 3Right to assessors as a fair trial right
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
p. 3Nullity of trial conducted without assessors
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.
p. 3Final orders - conviction quashed and appellant set at liberty

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.