FRED KIPCHUMBA CHEPKWONY vs REPUBLIC [1999] KECA 80 (KLR)

Court of Appeal

20 September 1999

JGJ.E. Gicheru ASA.B. Shah SBS.E.O. Bosire

447 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that a criminal trial started with fewer than three assessors is illegal, voiding the conviction and ordering a retrial.

What this practically means

Executive summary

The Court of Appeal at Nairobi (Gicheru, Shah and Bosire JJ.A) allowed the appellant's appeal against a conviction for manslaughter entered by Etyang' J of the High Court at Embu on 7th March 1997 in H.C.CR. Case No. 1 of 1995. The appellant had been one of three accused; a co-accused, Kenneth Nyaga Muthenya, had already succeeded in Criminal Appeal No. 47 of 1998, decided at Nyeri on 10th May 1999, in which the Court held that the entire trial was a nullity because it was conducted ab initio with only two assessors instead of the three required by section 263 of the Criminal Procedure Code. The Court adopted the same reasoning here, reiterating that section 298(1) of the Code, which deals with the absence of an assessor during the course of a trial, has no application at the commencement of a trial, and that a trial court cannot lawfully start a trial with the aid of assessors with fewer than three assessors, as to do so would vitiate the trial. Applying that rule, the Court allowed the appeal, set aside the conviction and sentence, and ordered an expeditious retrial before any other judge of the High Court in the interest of justice. The judgment also records the Court's concern and lament at the absence of a representative from the office of the Attorney General at the hearing despite due notification, noting this was not the first such occurrence. The judgment is a single judgment of the whole court with no separate opinions or dissents. No costs order was made.

Key legal issues

Legality of a trial commenced with fewer than three assessors

Holding

The trial was a nullity because it was conducted ab initio with only two assessors, contrary to the mandatory requirement of section 263 of the Criminal Procedure Code.

Reasoning

The court adopted its earlier reasoning in Criminal Appeal No. 47 of 1998 (Kenneth Nyaga Muthenya), where it held that section 298(1) of the Criminal Procedure Code governs only the absence of an assessor during the course of a trial already underway. Since the trial here had not properly started with the statutory complement of three assessors, section 263, which is mandatory, was breached. A trial commenced with fewer than three assessors is illegal and of no effect, and the same result must follow in this appeal as in the co-accused's appeal.

p. 1

Legal principles established

Where a trial is to be held with the aid of assessors, the trial court cannot lawfully commence the trial with fewer than three assessors; doing so vitiates the entire trial. Section 298(1) of the Criminal Procedure Code applies only where the trial has already commenced.

Court orders

1.Appeal allowed
2.Conviction and sentence set aside
3.Expeditious retrial ordered before any other judge of the High Court

On appeal from: High Court of Kenya at Embu; H.C.CR. Case No. 1 of 1995
Jurisdiction invoked: First appellate jurisdiction over convictions and judgments of the High Court exercising original criminal jurisdiction (Criminal Appeal No. 27 of 1999)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "FRED KIPCHUMBA CHEPKWONY vs REPUBLIC [1999] KECA 80 (KLR)", Case Analysis (1999). Criminal Appeal No. 27 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/80/eng@1999-09-20

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