Julius Muriira & 3 others v Republic [2008] KECA 82 (KLR)
The bottom line
#Kenya's Court of Appeal threw out four death sentences because a 16-year-old was condemned and the murder trial was procedurally flawed, ordering a fresh trial.
What this practically means
#Executive summary
#Key legal issues
#Sentencing of a minor to death
The death sentence imposed on the third appellant, who was assessed at 16 years at the material time, was a glaring error of law.
The third appellant was medically assessed at 16 years and the P3 form was produced in evidence. The court held that the law, both before and after the Children Act, prohibits imposition of the death sentence on any person below 18 years. The court took no action on this error because of the retrial ordered on the other ground, but admonished High Court Judges to avoid such elementary errors.
Selection of assessors
The mere direction to pay allowances to three of four persons present did not amount to selection of assessors, and the trial without proper selection was invalid.
The record showed that at no point between plea and hearing was there any selection of assessors. On the hearing date the judge did not inquire into the suitability of the four persons present, nor were the assessors named in the presence of defence counsel or the accused. Payment of allowances did not amount to selection. Since the case proceeded at a time when murder trials required assessors, the trial was invalid for want of proper selection.
Readmission of a dropped assessor
An assessor who was dropped after missing part of the proceedings could not lawfully be allowed back to give an opinion on the whole case.
One assessor was absent when the last prosecution witness testified and when submissions under section 306(2) of the Criminal Procedure Code were made and the ruling delivered, yet he was allowed to return and deliver an opinion on guilt. Following Abdullahi Abdalla Mukulu v. Republic and Joseph Mwai Kungu v. Republic, the court held this was improper: an assessor who has missed part of the proceedings cannot give an informed opinion on the entire case. This rendered the trial a nullity.
Whether to order a retrial
A retrial was appropriate as the ends of justice would be met, the retrial to proceed without assessors under the amended Criminal Procedure Code.
Applying Mwangi v. R (1983) KLR 522, the court weighed the evidence on record, the period the appellants had spent in police and prison custody, and the submissions of both counsel. Although the appellants argued they had suffered seven years of incarceration, the court concluded a retrial would meet the ends of justice and directed a fresh hearing before a judge other than Sitati, J, without the aid of assessors given the repeal of the assessor provisions.
Legal principles established
#- Any person below the age of 18 years cannot be sentenced to death, whether before or after enactment of the Children Act.
- Once an assessor is dropped and the court elects to proceed with two assessors, the dropped assessor must not be readmitted to the trial or give an opinion on guilt.
- A retrial should only be ordered where, on proper consideration of admissible or potentially admissible evidence, a conviction might result.
Court orders
#- 1.Appeals allowed
- 2.Sentences of death set aside in each case
- 3.Criminal Case No. 43 of 2002 to be heard afresh by a judge of the superior court other than Sitati, J
- 4.Retrial to proceed under the Criminal Procedure Code as amended by Act 7 of 2007, without the aid of assessors
- On appeal from
- High Court of Kenya at Meru
- H.C. Cr. C. No. 43 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over convictions and sentences of the High Court under the Criminal Procedure Code (murder trial on appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Muriira & 3 others v Republic [2008] KECA 82 (KLR)", Case Analysis (2008). Criminal Appeal 194 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/82/eng@2008-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.