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Court of AppealAllowedCriminal Appeal No. 5 of 1998· [1998] KECA 94 (KLR)

BENARD ZAKAYO MUSE vs REPUBLIC [1998] KECA 94 (KLR)

Court of Appeal
26 February 1998
ZCZ. R. ChesoniJGJ. E. GicheruSBS. E. O. Bosire
173 words in judgment
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The bottom line

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Kenya's Court of Appeal freed Benard Zakayo Muse after the State itself withdrew support for his conviction of being an accessory after the fact.

What this practically means

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Executive summary

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This is a short ex tempore judgment of the Court of Appeal at Nakuru, delivered by Chesoni CJ with Gicheru and Bosire JJ.A, in a criminal appeal by Benard Zakayo Muse against his conviction and sentence by Nambuye J of the High Court at Eldoret in H.C.CR.C. No. 28 of 1995, dated 23rd September 1997, for being an accessory after the fact contrary to Section 396(1) as read with Section 397 of the Penal Code. The decisive feature of the appeal was that the Respondent, the Republic, did not support the conviction. Acting on that position, the court allowed the appeal, quashed the conviction, set aside the sentence and ordered that the appellant be set free forthwith unless otherwise lawfully held. The court indicated that its reasons would be given on 6th March 1998 at Nairobi; those reasons are not part of the judgment as provided, so the detailed reasoning underlying the decision cannot be analysed from this text. No costs order was made, no authorities were cited, and the judgment is a single judgment of the whole court with no separate or dissenting opinions. The decision binds the High Court and subordinate courts to the extent that a conviction abandoned by the Republic cannot stand on appeal.

Key legal issues

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Sustainability of the conviction for being an accessory after the fact

Holding

The conviction could not stand, the Republic having withdrawn support for it; the appeal was allowed and the conviction and sentence were set aside.

Reasoning

The judgment as delivered on 26th February 1998 is a short ex tempore ruling. The court recorded that the Respondent did not support the appellant's conviction of accessory after the fact contrary to Section 396(1) as read with Section 397 of the Penal Code, and on that basis allowed the appeal, quashed the conviction, set aside the sentence and ordered the appellant's release, with reasons to follow later.

p. 2

Legal principles established

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  • Where the Respondent (Republic) does not support a conviction, the Court of Appeal will allow the appeal, quash the conviction and set aside the sentence.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction of accessory after the fact quashed
  3. 3.Sentence set aside
  4. 4.Appellant set free forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Eldoret
H.C.CR.C. No. 28 of 1995
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a conviction and sentence of the High Court (Criminal Appeal No. 5 of 1998)

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, "BENARD ZAKAYO MUSE vs REPUBLIC [1998] KECA 94 (KLR)", Case Analysis (1998). Criminal Appeal No. 5 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/94/eng@1998-02-26

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