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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 5 of 2015· [2019] KECA 984 (KLR)

Peter Kamonjo Njoroge v Republic

Court of Appeal of Kenya
8 February 2019
2,675 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a disruptive accused person can lawfully be tried in their absence and lost his appeal against a robbery conviction.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Chief Magistrate's Court at Kiambu and sentenced to death. His first appeal to the High Court (Kimaru & Nyamweya, JJ.) was dismissed, conviction and sentence being upheld. On second appeal, the Court of Appeal (Visram, W. Karanja and Koome, JJA) identified two issues: whether the appellant's exclusion from parts of his trial contravened section 77(2)(f) of the retired Constitution, and whether the first appellate court failed to re-evaluate the evidence, occasioning a miscarriage of justice. The Court held that the trial magistrate acted lawfully in proceeding in the appellant's absence: his persistent disruptive, rude and unruly conduct rendered continuation of the proceedings in his presence impracticable, and he had refused to participate in his defence. Relying on Daniel Karuma alias Njaluo v Republic, the Court held that an accused cannot benefit from his own misconduct, and that the opportunity to be heard had been fully accorded, including a trial de novo after the first magistrate disqualified himself. On the second issue, the Court found that both courts below properly analysed the evidence and made unchallenged concurrent findings of fact, which, on a second appeal confined to matters of law under section 361(1)(a) of the Criminal Procedure Code, could not be disturbed. The appeal was dismissed and both conviction and sentence were upheld. The judgment binds lower courts on the principle that a deliberately disruptive accused forfeits the right to be present at trial.

Key legal issues

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01

Whether the exclusion of the appellant from his trial violated his right to a fair trial under section 77(2)(f) of the retired Constitution

Holding

The exclusion was lawful and did not violate the right to a fair trial because the appellant's persistent disruptive and unruly conduct rendered continuation of the proceedings in his presence impracticable.

Reasoning

The trial shall not take place in an accused's absence except with his consent, unless he so conducts himself as to render the continuance of proceedings in his presence impracticable and the court has ordered his removal. The record showed repeated warnings, recorded unruly conduct, and a refusal to participate after being placed on his defence. The magistrate gave the appellant every opportunity, including a trial de novo before a fresh magistrate, and was entitled to proceed in his absence.

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02

Whether the first appellate court's failure to analyse the exclusion issue in detail occasioned a miscarriage of justice

Holding

No miscarriage of justice occurred; the Court of Appeal itself examined the record and found both courts below properly analysed the evidence and made proper concurrent findings.

Reasoning

Although the first appellate court did not examine the exclusion issue in detail (it had not been properly raised in the memorandum of appeal before it), this Court considered the matter itself. Even without the appellant's defence, the evidence supported conviction; concurrent findings of fact stood unchallenged on a second appeal confined to law.

p. 3

Legal principles established

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  • An accused person whose conduct renders the continuation of proceedings in his presence impracticable may be removed and tried in his absence under section 77(2)(f) of the retired Constitution, and cannot later complain of exclusion caused by his own misconduct.
  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Both the conviction and the sentence of death as imposed by the trial court and upheld by the High Court are upheld
On appeal from
High Court of Kenya at Nairobi
H.C. CR. A No. 557 of 2009
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kamonjo Njoroge v Republic", Case Analysis (2019). Criminal Appeal No. 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/984/eng@2019-02-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.