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Court of AppealAllowedCriminal Appeal (from Kericho HCCRA No. 11 of 2016)

Cheruiyot & 3 others v Republic (Criminal Appeal 80 of 2018) [2026] KECA 725 (KLR)

Court of Appeal
10 April 2026
3,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated the acquittal of four men, ruling that retrials can only be ordered in special circumstances and never where they cause injustice.

What this practically means

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Executive summary

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The four appellants faced charges of forgery, abuse of office and conspiracy to defraud relating to land parcel Kericho/Silibwet/1428 before the Kericho Chief Magistrate's Court. At the close of the prosecution case, the trial magistrate acquitted them under section 210 of the Criminal Procedure Code, finding no prima facie case. The State appealed to the High Court at Kericho (HCCRA No. 11 of 2016), where Muya, J. quashed the acquittal on 29th November 2018 and ordered a retrial. The appellants appealed to the Court of Appeal at Nakuru, contending the retrial order was baseless, unconstitutional, breached Article 50 fair-hearing guarantees, amounted to double jeopardy, and was prejudiced by the complainant's death, the pendency of Kericho ELCC No. 80 of 2013, and alleged judicial bias. As a second appellate court under section 361 of the Criminal Procedure Code, the Court confined itself to questions of law. It distilled the settled retrial principles: a retrial lies only where the interests of justice require it, in special circumstances, and where no injustice will be caused. The Court found the learned judge gave no reasons for ordering a retrial beyond the absence of a conviction, did not demonstrate the magistrate was wrong, and that a retrial would occasion injustice: the complainant, the central witness, had died; witness memories had eroded over the long delay since the 2013 arraignment; and the appellants would face a fourth trial before a different magistrate, contrary to Article 50. The Court allowed the appeal, set aside the High Court judgment and reinstated the acquittal.

Questions the Court framed

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

  1. 1.Whether the learned judge applied the correct principles in ordering a retrial

Key legal issues

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01

Whether the High Court correctly ordered a retrial under section 348A of the Criminal Procedure Code

Holding

The learned judge erred: he gave no reasons for ordering a retrial, applied no retrial principles, and a retrial was not the appropriate remedy; the appeal was allowed and the acquittal reinstated.

Reasoning

The Court, as a second appellate court confined to matters of law under section 361 of the Criminal Procedure Code, found the judge ordered a retrial without a single reason demonstrating the magistrate's acquittal was wrong. A retrial under section 348A lies only in special circumstances and where no injustice results. Here the complainant had died, witnesses' memories had eroded after 12 years, and the appellants would face a fourth trial before a different magistrate, offending Article 50 fair-hearing guarantees. The pending civil suit could proceed unaffected.

p. 5
02

Whether the retrial order occasioned injustice to the appellants

Holding

Yes. The death of the complainant, the age of the case, and a fourth trial before a different magistrate would cause injustice and fall short of a fair hearing under Article 50.

Reasoning

The complainant, the central figure in the case, had passed away, depriving the appellants of the chance to cross-examine her. Witnesses' recollections of events from 2013 would have eroded. The matter had already been heard de novo by three different magistrates, and a retrial would mean a fourth hearing, amounting to an injustice inconsistent with Article 50 of the Constitution.

p. 6

Legal principles established

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  • An acquittal under section 210 of the Criminal Procedure Code, following a finding that the prosecution failed to establish a prima facie case, should not be disturbed on appeal without reasons demonstrating the trial court was wrong; and an order for retrial is available only in special circumstances where no injustice will be occasioned to the accused.
  • Where a first appellate court finds a prima facie case was established against accused persons acquitted under section 210, the appropriate order is that they be placed on their defence, not a retrial.

Court orders

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  1. 1.Set aside the decision of the learned judge delivered on 29th November 2018
  2. 2.Reinstate the findings of the trial court delivered on 22nd July 2016, acquitting the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kericho
HCCRA No. 11 of 2016
Jurisdiction invoked
Second appellate jurisdiction under section 361 of the Criminal Procedure Code

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we set aside the decision of the learned judge delivered on 29th November 2018 and reinstate the findings of the trial court delivered on 22nd July 2016, acquitting the appellants. It is so ordered.
p. 6Final orders - acquittal reinstated
It is trite that in ordering a retrial, the learned Judge ought to have considered the fact that an acquittal alone is not a suficient ground for ordering a retrial. This is a power that should be exercised sparingly and in special cases.
p. 5Retrial principles - sparing exercise of section 348A power
If indeed the matter is retried as is, there will be an injustice on the part of the appellants who will not have the opportunity to cross examine her evidence.
p. 6Injustice from death of complainant
We do not think that an order for retrial is available under the provision.
p. 5Section 348A not applicable where acquittal was under section 210

Issues in the judgment

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minor

The judgment body states the appeal was heard on 10th February 2026, but the delivery clause is dated 10th April 2026 - a two-month gap between hearing and delivery, not itself contradictory but worth noting for dating purposes.

minor

The coram appears only as a signature block without formal bench listing; the panel is inferred from the three signatories.

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, "Cheruiyot & 3 others v Republic (Criminal Appeal 80 of 2018) [2026] KECA 725 (KLR)", Case Analysis (2026). Criminal Appeal (from Kericho HCCRA No. 11 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/725/eng@2026-04-10

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