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Supreme CourtDismissedPetition 23 of 2019· [2020] KESC 23 (KLR)

Joseph Lendrix Waswa v Republic

Supreme Court of Kenya
4 September 2020
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
10,019 words in judgment
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·~40 min to read original · ~4 min brief

The bottom line

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Victims may join criminal trials but not as prosecutors; interlocutory appeals should be deferred until after trial.

What this practically means

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The Supreme Court ruled that victims have a constitutional right to participate in criminal trials, but the trial judge decides how much they can take part. This must not disrupt the accused's fair trial or the prosecutor's role. Also, appeals made during a trial (interlocutory appeals) should generally wait until the trial ends to avoid delays, except in rare cases like evidence rulings that could kill the prosecution case. The Court dismissed Waswa's appeal and ordered his murder trial to be heard quickly.

Executive summary

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The Supreme Court dismissed an appeal by Joseph Lendrix Waswa, who was charged with murder, challenging a High Court ruling that allowed the victim's counsel to participate in the trial. The Court of Appeal had upheld that ruling. The Supreme Court addressed two main issues: the extent of a victim's participation in a criminal trial and the handling of constitutional issues that arise during a trial to avoid delay. The Court held that victims have a right to participate in criminal proceedings under Article 50(9) of the Constitution and the Victim Protection Act, but the manner and extent of participation is at the discretion of the trial judge, who must balance the victim's rights with the accused's right to a fair trial and the DPP's prosecutorial powers. The Court provided 11 guiding principles for trial courts, emphasizing that the victim is not a secondary prosecutor and cannot interfere with the DPP's mandate. On the second issue, the Court held that interlocutory appeals in criminal trials should generally be deferred until after the final judgment to avoid inordinate delays, which violate the accused's right to a fair trial under Article 50(2)(e). The Court identified three exceptional circumstances where an interlocutory appeal may be sparingly allowed. The Court dismissed the appeal, upheld the Court of Appeal's decision, directed that the original murder trial be heard on a priority basis due to the delay, and ordered each party to bear their own costs.

Key legal issues

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01

What is the extent of a victim’s participation in a criminal matter?

Holding

A victim has a right to participate in a criminal trial, but the extent and manner of participation is at the discretion of the trial court, which must balance the victim's rights with the accused's right to a fair trial and the DPP's prosecutorial powers. The victim is not a secondary prosecutor.

Reasoning

The Court analyzed Article 50(9) of the Constitution and the Victim Protection Act (VPA), particularly Section 9, which grants victims rights to be heard and present their views. The Court held that these rights do not make the victim a co-prosecutor or interfere with the DPP's constitutional mandate under Article 157. The trial judge has the discretion to determine the scope of participation, guided by principles such as ensuring no undue delay, limiting participation to the victim's views and concerns, and ensuring it is not prejudicial to the accused. The Court provided a list of 11 guiding principles for trial courts.

p. 21
02

What ought to happen when a constitutional issue arises in a criminal trial to avoid delay in the determination of the case?

Holding

Interlocutory appeals in criminal trials should generally be deferred until after the final judgment, except in exceptional circumstances, to avoid inordinate delays that violate the accused's right to a fair trial under Article 50(2)(e).

Reasoning

The Court noted that the Criminal Procedure Code does not provide for interlocutory criminal appeals, and allowing them can lead to significant delays, as happened in this case where the trial was paused for over six years. The Court held that the right to appeal an interlocutory decision exists but should be exercised after the trial concludes. The Court identified three exceptional circumstances where an interlocutory appeal may be sparingly allowed: decisions on admissibility of evidence that would eliminate or substantially weaken the prosecution case, decisions of sufficient importance to the trial, and decisions on the recusal of the trial court.

p. 25

Legal principles established

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  • A victim's participation in a criminal trial is at the trial court's discretion, balancing the victim's views, the accused's fair trial rights, and the DPP's powers.
  • A victim is not a secondary prosecutor and cannot interfere with the DPP's mandate to prosecute.
  • Interlocutory appeals in criminal trials should generally be deferred until after final judgment to avoid delays.
  • Exceptional circumstances for interlocutory appeals include decisions on admissibility that would weaken the prosecution, decisions of sufficient importance, or recusal of the trial court.
  • The trial court must ensure victim participation does not cause undue delay or prejudice the accused.
  • The right to a fair trial under Article 50(2)(e) includes trial within a reasonable time; delays from interlocutory appeals violate this right.

Court orders

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  1. 1.Petition of Appeal No 23 of 2019 dated July 3, 2019 is hereby dismissed.
  2. 2.For the avoidance of doubt, the determination in Criminal Appeal No 132 of 2016 (Githinji, Okwengu & J Mohammed, JJ.A) is hereby upheld.
  3. 3.In view of the inordinate delay of the original murder trial, occasioned by appeals relating to an interlocutory matter, we direct that the substantive matter be heard and determined on the basis of priority.
  4. 4.Each party shall bear their costs of the appeal.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 2(5)
  • Constitution of Kenya, 2010Article 2(6)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 20(1)
  • Constitution of Kenya, 2010Article 20(2)
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 20(4)
  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 50(2)(e)
  • Constitution of Kenya, 2010Article 50(2)(j)
  • Constitution of Kenya, 2010Article 50(7)
  • Constitution of Kenya, 2010Article 50(9)
  • Constitution of Kenya, 2010Article 50(q)
  • Constitution of Kenya, 2010Article 157
  • Constitution of Kenya, 2010Article 157(1)
  • Constitution of Kenya, 2010Article 157(6)
  • Constitution of Kenya, 2010Article 157(10)
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya, 2010Article 259(3)
  • Criminal Procedure Code (Cap 75)Section 137
  • Criminal Procedure Code (Cap 75)Section 150
  • Criminal Procedure Code (Cap 75)Section 203
  • Criminal Procedure Code (Cap 75)Section 204
  • Criminal Procedure Code (Cap 75)Section 329(c)
  • Criminal Procedure Code (Cap 75)Section 329A - 329E
  • Criminal Procedure Code (Cap 75)Section 347
  • Criminal Procedure Code (Cap 75)Section 379(1)
  • Victim Protection Act, 2014Section 2
  • Victim Protection Act, 2014Section 3
  • Victim Protection Act, 2014Section 4
  • Victim Protection Act, 2014Section 4(2)(b)
  • Victim Protection Act, 2014Section 9
  • Victim Protection Act, 2014Section 9(1)
  • Victim Protection Act, 2014Section 9(1)(b)
  • Victim Protection Act, 2014Section 9(2)
  • Victim Protection Act, 2014Section 9(2)(a)
  • Victim Protection Act, 2014Section 9(2)(b)
  • Victim Protection Act, 2014Section 9(3)
  • Victim Protection Act, 2014Section 9(10)
  • Office of the Director of Public Prosecutions Act, 2013Section 6
  • Supreme Court Act, 2011Section 3
  • Supreme Court Rules, 2012Rule 3
  • Supreme Court Rules, 2012Rule 9
  • Supreme Court Rules, 2012Rule 33
  • Penal Code (Cap 63)Section 203
  • Penal Code (Cap 63)Section 204
  • United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)Clauses 4-6
  • Rome Statute of the International Criminal CourtArticle 67(c)
  • Rome Statute of the International Criminal CourtArticle 68(3)
  • ICC Rules of Procedure and EvidenceRule 89(1)
  • ICC Rules of Procedure and EvidenceRule 90(2)-(4)
  • African Charter on Human and People's RightsArticle 7(d)
  • International Covenant on Civil and Political Rights (ICCPR)Article 14(3)(c)
  • Canadian Victim Bill of Rights ActSection 14
  • Canadian Victim Bill of Rights ActSection 15
  • Canadian Victim Bill of Rights ActSection 20
  • Germany's Code of Criminal Procedure§§ 395-402
  • Germany's Victim Protection Act (Opferschutzgesetz)18 December 1986

Cases cited (31)

  • South Dakota v North Carolina
    192 US 268 (1940) L ED
  • Dennis Mogambi Mong’are v. Attorney General & 3 others
    Civil Appeal No 123 of 2012
  • Tinyefuza v Attorney general of Uganda
    Constitutional Petition No 1 of 1997 (UGCC3)
  • R v Big Drug Mart Ltd
    [1985] 1 SCR 295
  • Ng Ka Ling & another v The Director of Public Immigration
    (1999) 1HKLRD 315
  • Centre for Rights Education and Awareness Case
  • Marbury v Madison
    5 US (1Cranch)137
  • Attorney General of the Gambia v Jobe
    (1985) LRC
  • Bakare v State
    1985 2NWLR
  • Ndegwa v Republic
    [1985] eKLR 534
  • Paul Ssemogerere and others v The Attorney General
    Constitutional Appeal No 1 of 2002 [2004] UGSC10
  • Ndyanabo v Attorney General
    [2001] 2 EA 485
  • Tinyefuze v Attorney General of Uganda
    Constitutional Petition No 1 of 1996 [1997] 3 UGCC
  • Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others
    [2017]eKLR
  • Kigula and others v Attorney General
    [2005]1EA132
  • Re the Matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • Mallikarjun Kodagali (Dead) represented through Legal Representation/appellants v State of Karnataka & others
    Criminal Appeal Nos 1281-82 of 2018
  • Hiralal Ratanlal v Sito
    Air 1973 SC 1034
  • Direct United States Cable Co v The Anglo-American Telegraph Co
    (1877)2AC
  • Zahira Habibulla H Sheikh & another v State of Gujarat & others
    446-449 of 2004
  • Attorney-General’s Reference (No. 3 of 1999)
    [2001] 2 AC 91 [118]
  • R v H
    [2004] 2 AC 134
  • Sporrong and Lönnroth v Sweden
    (1982) 5 EHRR 35, 52, para 69
  • Sheffield and Horsham v United Kingdom
    (1998) 27 EHRR 163, 191, para 52
  • Republic v Director of Public Prosecutions exparte Meridian Medical Centre Ltd & 7 others
    Petition No. 363 of 2013
  • Thomas Patrick Gilbert Cholmondeley v Republic
    Criminal Appeal No 116 of 2007 [2008] eKLR
  • John Njenga Kamau v Republic
    Criminal Appeal No 63 of 2014 [2014] eKLR
  • Sheila Kinya Maingi v Republic
    Criminal Appeal No. 388 of 2008 [2016] eKLR
  • Maur Abdalla Bwanamaka v Director of Public Prosecutions & another
    Petition No 23 0f 2018 [2019] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    SC. Application No 16 of 2014; [2014] eKLR
  • Anuar Loitiptip v Independent Electoral & Boundaries Commission & 2 others
    Petition No 18 as consolidated with Petition No 20 of 2018; [2019] eKLR
On appeal from
Court of Appeal
Criminal Appeal No 132 of 2016
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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Before 2016
High Court ruling allows victim's counsel to participate in murder trial.
2016
Court of Appeal upholds High Court ruling in Criminal Appeal No. 132 of 2016.
2019-07-03
Joseph Lendrix Waswa files Petition of Appeal No. 23 of 2019 to the Supreme Court.
2023
Supreme Court dismisses appeal, upholds Court of Appeal, and directs priority hearing of the original murder trial.

Practical implications

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For lawyers

Guide clients on victim participation and interlocutory appeals

Lawyers should advise clients that victim participation is discretionary and must not prejudice the accused or interfere with the DPP. Also, interlocutory appeals are discouraged unless exceptional. To avoid delays, raise constitutional issues at trial and defer appeals until after judgment. Use the 11 guiding principles from this case to argue victim participation scope.

For businesses

Expect faster criminal trials with fewer delays

Businesses facing criminal charges can now expect fewer delays from interlocutory appeals. The ruling discourages piecemeal appeals, so trials should proceed to conclusion quickly. If a business is a victim, it can participate but only as allowed by the trial court. Prepare to present views early, but do not expect to control prosecution.

For individuals

Know your rights as victim or accused in Kenya

If you are a crime victim, you can give your views in court, but the judge decides how. You cannot act as a prosecutor. If you are accused, your right to a speedy trial is strengthened because interlocutory appeals are limited. You can object if victim participation becomes excessive or delays your case. Seek legal advice early.

Frequently asked questions

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Can a victim of a crime participate in a criminal trial in Kenya?+

Yes, under Article 50(9) of the Constitution and the Victim Protection Act, victims have a right to be heard. However, the trial judge decides the extent of participation, balancing the victim's views with the accused's fair trial rights and the DPP's role.

What is an interlocutory appeal in a criminal case in Kenya?+

An interlocutory appeal is an appeal made during a trial, before the final judgment. The Supreme Court now says such appeals should generally wait until after the trial ends, except in rare cases like evidence rulings that could destroy the prosecution case or recusal of the judge.

How does the Waswa case affect the right to a fair trial in Kenya?+

The case strengthens the right to a fair trial by limiting delays from interlocutory appeals. It also clarifies that victim participation must not prejudice the accused. The trial court must balance these rights to ensure a speedy and fair trial.

What should I do if I want to participate as a victim in a Kenyan criminal trial?+

Apply to the trial court through a lawyer or by yourself. The court will decide how you can participate, such as by giving a victim impact statement. You cannot decide the charges or how the prosecution runs its case. The judge will ensure your participation is not disruptive.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Lendrix Waswa v Republic", Case Analysis (2020). Petition 23 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/23/eng@2020-09-04

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