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Court of AppealPartially AllowedCriminal Appeal 269 of 2006

Court of Appeal of Kenya At Nairobi v Republic

Court of Appeal of Kenya
26 January 2007
ROR.S.C. OmoloPWP.N. WakiJOJ.W. Onyango Otieno
1,833 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a murder conviction because the judge skipped summarising evidence for assessors, but ordered the accused face a retrial.

What this practically means

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Executive summary

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The appellant, Charo Katana Kitsao, was convicted of murder by the High Court at Malindi (Khaminwa, J.) and sentenced to death. On appeal, the State conceded that the trial Judge, after hearing the entire case, had not summed up the evidence to the assessors as required by law, and sought a retrial; counsel for the appellant agreed the trial was a nullity but opposed a retrial on the ground that he had been deprived of liberty for close to seven years. The Court of Appeal (Omolo, Waki and Onyango Otieno, JJA) held that although section 322(1) of the Criminal Procedure Code uses the word 'may', summing-up to assessors had by usage and case law acquired the force of law and was mandatory, following Joseph Mwai Kungu v Republic. There was no written summary of the evidence and no special or compelling reason for its omission, so the entire trial was a mistrial and the conviction was quashed and the sentence set aside. On retrial, the Court applied Ahmed Sumar v Republic and Bernard Lolimo Ekimat v R, holding that a retrial should be ordered only where the interests of justice require it. Distinguishing Pascal Ouma Ogolo and Fundi Reuben Ngala, and noting the defect was the trial court's error for which the prosecution was not to blame and that the State assured witnesses would be available, the Court ordered a retrial before another competent court, the appellant to be produced at Malindi within fourteen days. The appeal thus succeeded only in part: the conviction fell, but the appellant's request to be set at liberty without retrial was refused.

Key legal issues

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01

Effect of failure to sum up to assessors

Holding

Although section 322(1) of the Criminal Procedure Code uses the word 'may', summing-up to the assessors has acquired the force of law and is mandatory; the trial Judge here gave no summary of the evidence and no reason for the omission, so the entire trial was a mistrial

Reasoning

The Court reasoned that assessors can only be of use to the court if they make informed opinions, which they can only form upon the court summing up the entire evidence and directing them on issues of law. The practice has been followed for so long that it has acquired the force of law. In the record, the Judge simply requested the assessors' opinions without any written summary, and no special or compelling reason was advanced, so the conviction could not stand.

p. 2
02

Whether a retrial should be ordered

Holding

Applying the retrial principles, the Court ordered a retrial: the defect was the trial court's error for which the prosecution was not to blame, the recorded evidence might sustain a conviction, and the State assured that witnesses would be available for an early disposal

Reasoning

The Court distinguished the case from Pascal Ouma Ogolo, where retrial was refused for fear witnesses could not be traced, and from Fundi Reuben Ngala. It accepted that the appellant had not enjoyed liberty for close to seven years, but held that weighed against the need for justice — a person having lost his life — and the Principal State Counsel's assurance of witness availability, the interests of justice required a retrial before another competent court.

p. 3

Legal principles established

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  • Summing up to the assessors in a trial before the High Court is mandatory and no longer discretionary; a trial conducted without it, absent a special and compelling reason, is a mistrial
  • There must be on record evidence that summing-up to the assessors was undertaken, or a special and compelling reason for its omission
  • A retrial should only be ordered where the interests of justice require it, and not where it is likely to cause an injustice to the accused

Court orders

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  1. 1.Conviction quashed and sentence set aside, the trial having been a mistrial
  2. 2.Retrial of the appellant ordered before another competent court
  3. 3.Appellant to be produced before the superior court at Malindi for retrial within fourteen (14) days of the date of the judgment
On appeal from
High Court of Kenya at Malindi
H.C.CR.C. No. 4 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under the Criminal Procedure Code and Court of Appeal's appellate jurisdiction

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, "Court of Appeal of Kenya At Nairobi v Republic", Case Analysis (2007). Criminal Appeal 269 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/466/eng@2007-01-26

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