James Moses Moustache v Republic [2006] KECA 147 (KLR)

The Court opens with Okeno v Republic, whose restatement of the first appellate duty it adopts: the first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions. On the record, only the appellant was present and argued his appeal; the State had conceded his co-accused's appeals and no orders were made on them. Yet the High Court's judgment opened by reciting that six appellants had appealed and concluded by sentencing 'the appellants' to death. The Judges thus believed they were deciding six appeals when only one was before them, demonstrating that they never engaged with the evidence at all.

Because the High Court's judgment does not show that the Judges evaluated the evidence with the appellant's case in mind, the Court could not say the error was harmless. It was impossible to conclude that the confusion did not occasion the appellant a failure of justice. In that position the accused receives the benefit of the unknown - the appellate analogue of the benefit of doubt - which required the conviction to be quashed rather than the appeal to be dismissed on the footing that the result would have been the same had the duty been performed.

Once a failure of justice is established, the Court corrects the miscarriage directly rather than remitting the file for a fresh first-appeal hearing or ordering a retrial. Final relief was granted: quashing the conviction, setting aside the death sentence (notably, the trial magistrate had convicted of simple robbery under section 296(1) of the Penal Code, so the death sentence imposed by the High Court formed part of the very confusion identified) and directing immediate release unless the appellant is otherwise lawfully held. The Court declared these to be its orders on the appeal.