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Court of AppealPartially AllowedCriminal Appeal 87 & 88 of 2006· [2007] KECA 205 (KLR)

CYRUS MURIITHI KAMAU & ANOTHER v REPUBLIC [2007] KECA 205 (KLR)

Court of Appeal of Kenya
26 October 2007
2,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal set aside two death sentences because a magistrate took over a trial without telling the accused they could require witnesses to testify again.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nyeri (Omolo, Githinji and Waki, JJA) allowing the second appeals of Cyrus Muriithi Kamau and Moses Kibaara Maruta against the dismissal of their first appeals by the High Court at Meru (Lenaola and Sitati, JJ) on 14 February 2006. The appellants, tried with fifteen others before the Chief Magistrate at Meru on two counts of robbery with violence contrary to section 296(2) of the Penal Code, were convicted and sentenced to death; the victims of both robberies were killed. Each also faced an alternative count of handling stolen property contrary to section 322(2) of the Penal Code. Confining itself to issues of law, the Court rejected the complaint that the trial Magistrate was obliged to record each accused's plea in his exact words after the files were consolidated, holding that the principles in Adan v Republic apply only to pleas of guilty and that on a plea of not guilty the court need only ensure the accused understands the charge. The appeal turned on section 200 of the Criminal Procedure Code. After Mr. Muchelule's transfer, Mr. Muiruri continued the trial, including the evidence of PW1, which directly connected both appellants to the stolen bicycles, without informing them of their right under section 200(3) to have any witness re-summoned and reheard. The Court held that duty to be mandatory and incapable of waiver by counsel's request that the case proceed. The failure was fatal. The Court allowed the appeals, set aside the convictions and sentences, ordered a retrial before a different Magistrate on the charges as originally drawn, and directed continued detention pending the new trial, a retrial being feasible since a conviction could well be had on the entire evidence.

Key legal issues

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01

Recording of pleas of not guilty after consolidation of files (ground three)

Holding

A magistrate recording a plea of not guilty is not required to record it in the exact words of the accused; all that is required is that the accused understands the charge. The Adan v Republic principles govern only pleas of guilty.

Reasoning

After consolidation, fresh charges were read and each accused denied them; the record left no doubt that each appellant pleaded not guilty and a full trial ensued, the other accused being acquitted under section 210 of the Criminal Procedure Code. Apart from sections 207 and 208 of the Code, no law requires a magistrate recording a plea of not guilty to capture the accused's exact words; all that is required is that the accused understands the charge. The strict Adan v Republic sequence governs only pleas of guilty. Ground three therefore failed.

p. 2
02

Non-compliance with section 200(3) of the Criminal Procedure Code on transfer of the trial to a succeeding Magistrate (ground one)

Holding

The failure of the succeeding Magistrate to inform the appellants of their section 200(3) right to have witnesses re-summoned and reheard was, in the circumstances, fatal; counsel's request that the trial proceed did not waive the right, and the appeals were allowed on this ground.

Reasoning

Section 200(3) protects an accused whose trial continues before a succeeding Magistrate: the Magistrate must inform the accused of the right to have any witness re-summoned and reheard, and the duty is cast on the Magistrate in mandatory terms. PW1's evidence was not merely formal; it directly connected both appellants to the stolen bicycles, and Mr. Muiruri did not have the benefit of seeing or hearing that witness. Counsel's plea that the matter proceed before the new Magistrate could not be treated as waiving the appellants' statutory rights. The breach was fatal and both appeals were allowed.

p. 4
03

Scope of a second appeal

Holding

On a second appeal the Court deals only with issues of law.

Reasoning

The Court stated at the outset that, the appeals being second appeals, it could deal only with issues of law; findings of fact made by the first appellate court were not open to it. Counsel accordingly framed three grounds as pure questions of law — defective recording of pleas, non-compliance with section 200 of the Criminal Procedure Code, and conviction for robbery after being placed on defence on the handling count — and the Court addressed them on that footing.

p. 2
04

Whether a retrial was an appropriate remedy

Holding

A retrial before a different Magistrate was feasible and was ordered, with the appellants to remain in prison custody pending the new trial.

Reasoning

Having allowed the appeals on the section 200(3) ground, the Court weighed acquittal against a retrial. It noted that the victims were killed in a very cruel manner, that on the entire evidence a conviction could well be had, and that although the offences occurred some six years earlier, the trial had concluded only on 10th June 2004 and the first appeals on 14th February 2006. A retrial was therefore feasible and was ordered before a different Magistrate, with the appellants detained in custody pending the new trial.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal is confined to issues of law.
  • Where an accused pleads not guilty, the magistrate need only ensure the accused understands the charge; there is no requirement to record the plea in the accused's exact words, and the Adan v Republic principles apply only to pleas of guilty.
  • Section 200(3) of the Criminal Procedure Code casts on a succeeding Magistrate a mandatory duty to inform the accused of the right to have witnesses re-summoned and reheard; that duty cannot be waived by counsel's request that the trial proceed before the new Magistrate.

Court orders

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  1. 1.The two appeals (Criminal Appeals 87 and 88 of 2006) were allowed.
  2. 2.The convictions and sentences imposed on each appellant were set aside.
  3. 3.The appellants were ordered to be retried on the charges as originally drawn against them before a different Magistrate.
  4. 4.Pending the new trial, the appellants were ordered to continue to be detained in prison custody.

Authorities

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Legislation

  • Penal Codesection 296(2) (cited in the memorandum of appeal as Cap 63)
  • Penal Codesection 322(2)
  • Penal Codesection 322(1)
  • Criminal Procedure Codesection 200(3)
  • Criminal Procedure Codesection 200(4)
  • Criminal Procedure Codesections 207 and 208
  • Criminal Procedure Codesection 210

Cases cited (2)

  • ADAN V. REPUBLIC
    [1973] EA 445
  • NDEGWA V. REPUBLIC
    [1985] KLR 534
On appeal from
High Court of Kenya at Meru
H.C. Cr. A. No. 77 & 76 of 2004
Jurisdiction invoked
Second appeal to the Court of Appeal; the judgment invokes its limitation to questions of law ('These being second appeals, we are only entitled to deal with issues of law') but does not expressly cite the enabling provision.

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, "CYRUS MURIITHI KAMAU & ANOTHER v REPUBLIC [2007] KECA 205 (KLR)", Case Analysis (2007). Criminal Appeal 87 & 88 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/205/eng@2007-10-26

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