Ogola v Republic (Criminal Appeal 240 of 2006) [2007] KECA 495 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a murder conviction because one assessor missed the defence hearing and the judge never explained why he ignored the assessors.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of continuing a trial with fewer than three assessors and readmitting an absent assessor
The trial was rendered a nullity because one assessor absent during the appellant's defence was later readmitted and gave an opinion on the entire case, without reasons for his absence being recorded as required by section 298 of the Criminal Procedure Code.
Sections 262 and 263 require trials before the High Court to be with the aid of three assessors. Section 298 permits continuation with fewer only where an assessor is prevented from attending for sufficient cause or attendance cannot immediately be enforced, and stays the trial where two or more are absent. The assessor here was absent for the defence - an important part of the case - and no reasons were recorded. Following Dickson Mwaniki M'obici and the East African Court of Appeal authorities Cherere Gikuli and Joseph Kabui, the court held this a fundamental departure from procedure amounting to a nullity.
Failure to give reasons for departing from assessors' opinions
Although a judge is entitled in law to reach a different conclusion from the assessors, he must give reasons for departing from their unanimous opinion; the failure here was a second vitiating factor.
All three assessors opined the accused was not guilty, yet the judge convicted without explaining his divergence. Relying on Dickson Mwaniki M'obici, the court held that what assessors say is as important as what the court decides even if not binding, and unexplained sidelining of assessors vitiates a trial.
Whether to order a retrial
A retrial was ordered despite the nullity, because the interests of justice required it: the appellant's counsel consented, human life was lost, and a case worth pursuing existed; the appellant had been in custody slightly under three years.
Applying Muiruri v Republic, the court weighed the defects in the original trial, the elapsed time in custody, the fact the appellant was in custody throughout, the availability of the full record, and the consent of both counsel. Balancing these, an order for retrial reflected justice to all concerned, though the appellant would remain in custody.
Legal principles established
#- A trial which begins with the prescribed number of assessors and continues with fewer than that number is unlawful unless the case falls precisely within section 298 of the Criminal Procedure Code; an assessor who has not heard all the evidence cannot give an opinion on the case
- A trial judge who departs from the opinion of the assessors must give reasons for doing so; failure to give reasons for departure is a vitiating factor
- A retrial is ordered only where the interests of justice require it and it is unlikely to cause injustice to the appellant
Court orders
#- 1.Appeal allowed; conviction and sentence set aside
- 2.Case referred back to the superior court for retrial before a Judge other than Tanui J
- 3.Appellant to remain in custody for purposes of retrial
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code (appeal against conviction and sentence for murder)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogola v Republic (Criminal Appeal 240 of 2006) [2007] KECA 495 (KLR)", Case Analysis (2007). Criminal Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/495/eng@2007-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.