Joseph Macharia Miano & 3 Others v Republic [2009] KECA 160 (KLR)
The bottom line
#Kenya's Court of Appeal quashed four death sentences because a new magistrate took over the trial without telling the accused of their legal rights, and ordered a retrial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the fundamental rights of the appellants were violated by detention in police custody beyond 14 days before being brought to court
- 2.Whether the charge sheet was defective by reason of the motor vehicle registration number and the framing of three counts
- 3.Whether the identification parade was irregular for containing more than 8 persons
- 4.Whether proceedings conducted by a Senior Sergeant of Police at mentions contravened section 85(2) of the Criminal Procedure Code
- 5.Whether the trial before a succeeding magistrate without compliance with section 200(3) of the Criminal Procedure Code was a nullity
- 6.Whether, if the conviction is quashed, a retrial should be ordered
Key legal issues
#Non-compliance with section 200(3) of the Criminal Procedure Code when a succeeding magistrate takes over a part-heard trial
The trial was a nullity because the prosecution case was heard by one magistrate, the defence and judgment by another, and the succeeding magistrate never informed the accused of their right to have witnesses resummoned and reheard
The record showed the prosecution closed its case and a ruling of case to answer was delivered before W.N. Nyarima (SRM), while D.K. Ngomo (PM) took the defence and delivered judgment without recourse to section 200. The error was conceded by the State. Following Raphael, Kariuki and Ndegwa, the court held the assumption of jurisdiction without informing the accused of the section 200(3) right is fatal and renders the trial a nullity. The first appellate court had also failed to address the issue, leaving it at large for the second appeal.
Whether a retrial should follow the quashing of the conviction
A retrial was ordered because the trial was not short, substantial admissible evidence existed which might sustain a conviction, the prosecution was ready to re-summon witnesses, and the mistakes were those of the courts below, not the prosecution
The court applied the principle from Mwangi v Republic that a retrial may be ordered where a conviction might result on proper consideration of admissible evidence, and from Muiruri v Republic concerning elapsed time and responsibility for the mistakes. Eight prosecution witnesses had testified and all four appellants gave sworn defences, so the trial was not a short one. The errors were committed by the two courts below, which bore the duty to comply with fundamental procedure.
Sufficiency of the first appellate court's treatment of the section 200 issue
The superior court made no mention of the section 200 issue in its judgment, leaving the issue at large for determination on second appeal
Although the appellants had raised non-compliance with section 200 in the first appeal, the High Court (Koome and Kimaru, JJ.) did not deal with it and dismissed the appeal on other grounds. This left the legal issue unresolved and central to the appeal before the Court of Appeal, which thus determined it afresh on the record.
Complaints about the charge sheet, identification parade and mentions before unauthorised persons
All these grounds failed: the registration number discrepancy was a curable variance (indeed a typing error), the multi-count charge sheet was lawful, an identification parade with more than 8 persons conforms to the Standing Orders, and mentions for fixing hearing dates are not 'proceedings' requiring conduct by authorised persons
The court noted that a variance between charge sheet and evidence is not a defect in the charge sheet and is curable under section 382 of the Criminal Procedure Code; the typed record was shown to be a mis-typing. Three counts correctly reflected three different complainants robbed of different items on the same day. Order 6(iv)(d) of the Force Standing Orders prescribes a minimum, not a maximum, of 8 persons in a parade. The three mentions were before another magistrate and no witnesses testified.
Legal principles established
#- It is a prerequisite to a succeeding magistrate exercising jurisdiction that the accused be apprised of the right under section 200(3) to demand that witnesses be resummoned and reheard; failure to comply is fatal and renders the trial a nullity
- A conviction and sentence upon a trial conducted in breach of section 200 must be set aside, with the question of retrial considered separately on the facts
- An order for retrial is discretionary and depends on the particular facts and circumstances; it should only be made where the interests of justice require
- Section 200 of the Criminal Procedure Code ought to be used sparingly and should not be invoked where the part-heard trial is short, witnesses are locally available and the passage of time is short
- 'Proceedings' whose conduct by unauthorised persons is fatal does not include the mention of a case for the purpose of fixing a hearing date
- There is no legal basis for complaint where an identification parade contains more than 8 persons, as the Force Standing Orders provide for a minimum of 8
Court orders
#- 1.Appeal allowed
- 2.Conviction of all four appellants set aside
- 3.Sentence of death imposed on each appellant set aside
- 4.Appellants to be tried before any court of competent jurisdiction excluding W.N. Nyarima (SRM) and D.K. Ngomo (PM)
- 5.Appellants remanded in custody to await trial, which should be conducted expeditiously
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- H.C. CR. A. No. 38 of 2000
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code on matters of law
Relief refused
#Outright acquittal in place of retrial
The court held that on a proper consideration of the admissible evidence a conviction might result from a retrial and the prosecution indicated it could re-summon witnesses; the errors were attributable to the two courts below, not the prosecution
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we allow the appeal, set aside the conviction and the sentence of death imposed on each of them. We order that the appellants and each of them be tried before any court of competent jurisdiction excluding W.N. Nyarima (SRM) and D.K. Ngomo (PM).
if the second magistrate has not complied with this prerequisite it is fatal, he has no jurisdiction, and the trial is a nullity.
The provisions of section 200 of the Criminal Procedure Code (cap 75) ought to be used very sparingly; and only in cases where the exigencies of the circumstances are not only likely but will defeat the ends of justice if a succeeding magistrate is not allowed to adopt or continue a criminal trial started by a predecessor.
No rule of natural justice, statutory protection, evidence or of common sense should be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject since he is the most sacrosanct individual in the system of our legal administration.
The statutory and time honoured formula that the magistrate making the judgment should himself see, hear and asses and gauge the demeanour and credibility of witnesses should always be maintained.
an order for retrial should only be made where interests of justice require.
The appellants will in the meantime be remanded in custody to await their trial which, in view of the time elapsed so far, ought to be conducted expeditiously.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- David Kimani Njuguna v Republic [2015] KECA 2 (KLR)[2015] KECA 2 (KLR)12 Nov 2015followed
Cite this brief
#Cite this brief
Caselaw, "Joseph Macharia Miano & 3 Others v Republic [2009] KECA 160 (KLR)", Case Analysis (2009). Criminal Appeal 178 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/160/eng@2009-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.