Washingstone Walimulu s/o Masa v Republic [1987] KECA 35 (KLR)
The bottom line
#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 criminal proceedings before the resident magistrate, in which the accused was tried in absentia after refusing to attend, were a nullity
- 2.Whether the appellant had in fact applied to be tried by a different magistrate and whether the trial magistrate fairly considered that request
- 3.Whether the magistrate acted properly and justly in excluding the appellant from the entire trial, having regard to section 77(1) of the Constitution
- 4.Whether the High Court erred in summarily rejecting the appeal under section 352(2) of the Criminal Procedure Code given the grounds raising issues of law
Key legal issues
#Whether the trial conducted in the accused's absence was valid
The magistrate misdirected himself in excluding the appellant from the entire trial; the proceedings were a nullity because they violated the constitutional guarantee of a fair hearing under section 77(1).
The magistrate recorded that the appellant refused to have his case heard before him and ordered the trial to proceed in his absence. The court held the appellant's request to be tried by another magistrate was not discourteous and ought to have been fairly considered and fully recorded. Because the main criterion of a fair hearing is that the accused attend, put his defence and call witnesses, excluding him from the whole trial breached section 77(1) and rendered the proceedings a nullity.
Whether the High Court properly summarily rejected the first appeal under section 352(2)
The summary rejection was improper because the grounds of appeal disclosed issues of law on which the appellant should have been heard.
The High Court dismissed the first appeal summarily under section 352(2) of the Criminal Procedure Code. The Court of Appeal examined the eleven grounds of appeal and found they raised issues of law - notably the alleged bias of the trial magistrate and the propriety of trial in absentia - which required the appellant to be heard, so the summary procedure was wrongly applied.
Whether the appellant applied to be tried by a different magistrate
On the record the appellant was not being discourteous in applying to be tried by another magistrate, and the magistrate misdirected himself in not appreciating and fairly considering that request.
The court noted the magistrate's own record that the appellant 'refused to have his case heard before this court', but found the magistrate omitted to record the acts constituting the 'scenes' and the exchanges about a Kitale case. An accused shall not choose his court, but such applications are common and may succeed; the failure to appreciate and fairly consider the request was a misdirection.
Legal principles established
#- An accused person cannot choose his court, but may properly apply to be tried by a magistrate other than the one seized of the case; such an application must be fairly considered and fully recorded.
- A trial conducted in the absence of an accused who was wrongly excluded offends section 77(1) of the Constitution and is a nullity.
- A first appellate court's summary rejection of an appeal under section 352(2) is improper where the grounds raise issues of law requiring a hearing.
- The main criterion for fair hearing is the accused's attendance and opportunity to put his defence and call witnesses.
Court orders
#- 1.Declaration that the proceedings upon which the appellant was convicted and sentenced are a nullity
- 2.The appeal is allowed and the convictions are quashed
- 3.The appellant, who has been in jail since December 31, 1980, shall be 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
- Not stated in the judgment
- Jurisdiction invoked
- Second appellate jurisdiction under the Criminal Procedure Code following summary rejection of the first appeal to the High Court under section 352(2); constitutional issue under section 77(1) of the Constitution
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.
A fundamental principle of our constitution – section 77(1) is that if a person is charged with a criminal offence the case shall be afforded a fair hearing within a reasonable time.
The main criterion in deciding if there has been a fair hearing is whether the accused has attended the trial, and put his defence and called witness.
An accused person shall not choose his court. But it is common for one reason or other for an accused to successfully apply to be tried by a magistrate other than the one who is seized of their cases.
Considering all these matters, we allow the appeal, quash the convictions and order that the appellant who has been in jail since December 31, 1980 shall be set at liberty forthwith unless otherwise lawfully held.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Washingstone Walimulu s/o Masa v Republic [1987] KECA 35 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/35/eng@1987-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.