CYRUS MURIITHI KAMAU & ANOTHER v REPUBLIC (Criminal Appeal 87 & 88 of 2006) [2007] KECA 154 (KLR)
The bottom line
#Kenya's Court of Appeal voided two death sentences because a new magistrate never told the accused they could insist key witnesses testify again before him.
What this practically means
#Executive summary
#Key legal issues
#Whether the succeeding Magistrate's failure to comply with section 200(3) of the Criminal Procedure Code fatally vitiated the trial.
Yes. The failure was fatal; the convictions and sentences were set aside and a retrial ordered.
The trial began before Mr. Muchelule, who recorded the evidence of PW1 before his transfer. The succeeding Magistrate, Mr. Muiruri, continued the trial without informing the appellants of their right under section 200(3) to demand that any witness be re-summoned and reheard. Although the appellants' counsel asked that the trial proceed, that plea was not a waiver of the statutory right and did not relieve the Magistrate of his mandatory duty. Since PW1's evidence directly connected the appellants with the stolen bicycles and Mr. Muiruri never saw or heard that witness, the omission was fatal.
Whether failure to record each accused's separate and exact answer when pleading not guilty to the consolidated fresh charges rendered the proceedings defective.
No. A plea of not guilty need not be recorded in the accused's exact words; the court need only ensure the accused understands the charge. The Adan v Republic procedures are confined to guilty pleas. Ground three failed.
The record showed each appellant pleaded not guilty to the fresh charges and a full trial ensued, with the co-accused acquitted under section 210 of the Criminal Procedure Code. Apart from sections 207 and 208, no law requires a plea of not guilty to be recorded in the exact words of the accused. The position differs only where an accused is pleading guilty, in which case the Adan principles apply; they have no application to a plea of not guilty.
The scope of a second appeal to the Court of Appeal.
A second appeal is confined to issues of law; the court determines only the grounds of law raised in the memorandum of appeal.
The court opened by restating its appellate limitation: on a second appeal it is entitled to deal only with issues of law. It therefore confined its determination to the three grounds raised in counsel's supplementary memorandum of appeal filed on 11 May 2007, namely non-compliance with section 200 of the Criminal Procedure Code, conviction on a charge different from that on which the defence was called, and defective recording of pleas, without re-evaluating the factual evidence.
Legal principles established
#- A succeeding magistrate bears a mandatory statutory duty, under section 200(3) of the Criminal Procedure Code, to inform an accused person of the right to demand that any witness whose evidence was recorded by the predecessor be re-summoned and reheard; where the evidence taken by the predecessor is material, failure to do so is fatal to the conviction.
- An accused person does not waive the section 200(3) right merely because counsel asks the succeeding magistrate to continue the part-heard trial; counsel's plea does not relieve the magistrate of his duty to inform the accused of the right.
- In recording a plea of not guilty, the court is not required to record the exact words used by the accused; it is sufficient that the court ensures the accused understands the charge he is called upon to plead to.
- The plea-taking principles in Adan v Republic apply only where an accused person is pleading guilty; they have no application to the entry of a plea of not guilty.
- A second appeal to the Court of Appeal is confined to issues of law.
Court orders
#- 1.The two appeals are allowed.
- 2.The convictions and sentences imposed on each appellant are set aside.
- 3.The appellants shall be retried on the charges as originally drawn against them before a different Magistrate.
- 4.Pending their new trial, the appellants shall continue to be detained in prison custody.
- On appeal from
- High Court of Kenya, Meru
- H.C. Cr. A. No. 77 & 76 of 2004
- Jurisdiction invoked
- Second appeal to the Court of Appeal; the judgment cites no specific enabling constitutional or statutory provision, stating only: 'These being second appeals, we are only entitled to deal with issues of law.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CYRUS MURIITHI KAMAU & ANOTHER v REPUBLIC (Criminal Appeal 87 & 88 of 2006) [2007] KECA 154 (KLR)", Case Analysis (2007). Criminal Appeal 87 & 88 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/154/eng@2007-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.