Robert Fanali Akhuya v Republic & 1 other

Sections 213 and 310 CPC use the phrase 'address the court', which in ordinary parlance means oral address, and the Part IX procedures require submissions to be made in open court in the presence of the accused. In no part of the legislation is there mention of written submissions. A presiding officer is expected to orally hear submissions and seek clarification, while the accused must hear them and be able to clarify or object. The fact that the appellant's own counsel requested the procedure did not legitimise it, as the request was made in ignorance of the relevant constitutional provision.

Section 77(2) of the Constitution makes it mandatory for an accused person to be present at the hearing of his case except where he consents otherwise or his conduct renders continuation in his presence impracticable. Since final submissions are part of the trial, the accused has a constitutional right to listen to and understand them and to clarify or object to any point raised for his benefit. His freedom, and in some cases his life, is at stake. Counsel's request for written submissions could not cure the defect because it was made in ignorance of the Constitution, not in pursuance of it.

The court raised the issue suo motu; neither the superior court nor counsel had adverted to it. Because the accused was denied a full and fair hearing - the statutory right of orally persuading the court towards an acquittal - the irregularity occasioned a failure of justice within the meaning of section 382 CPC and so fell outside that section's saving provision. The conviction could therefore not stand and had to be quashed, together with the sentences imposed on all three counts.

Applying the principle in Njeru v R that whether to order a retrial largely depends on whether the trial was illegal or defective, the court acknowledged that in rare cases circumstances may militate against a retrial and warrant release. Although the appellant had been in custody since 1st August 1995, the offences were serious and the trial magistrate had otherwise conducted the trial well, the only defect being the irregularity over final submissions. The written submissions were expunged and the order giving rise to them set aside, with the matter to be heard afresh according to law.