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Court of AppealPartially AllowedCriminal Appeal 49 of 2008· [2009] KECA 433 (KLR)

Peterson Maina Wanjiku v Republic [2009] KECA 433 (KLR)

Court of Appeal of Kenya
15 May 2009
ROR. S. C. OmoloEGE. M. GithinjiAVAlnashir Visram
769 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a murder trial cannot lose assessors mid-trial just because the law changed after the trial started.

What this practically means

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Executive summary

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The appellant, Peterson Maina Wanjiku, was convicted of murder by the High Court at Nyeri (Makhandia, J) and sentenced to death. His trial opened on 25th July 2007 with three assessors, as then required by section 262 of the Criminal Procedure Code. That provision and related provisions were repealed by the Statute Law (Miscellaneous Amendments) Act No. 7 of 2007, effective 15th October 2007. On 21st November 2007, with ten prosecution witnesses already heard, the trial judge discharged the assessors in reliance on the amendment, with the apparent concurrence of both counsel, and the trial concluded without them. The Court of Appeal held that this was wrong: by virtue of section 23(3) of the Interpretation and General Provisions Act, a repeal does not affect legal proceedings already instituted, and the appellant's right to be tried with the aid of assessors had accrued before the repeal came into force. The court followed its earlier decision in Benard Kinoti M'Arachi vs. Republic, noting that in neither case had the judges considered the saving provision. Finding sufficient evidence upon which a reasonable tribunal could convict, the court allowed the appeal, set aside the conviction and sentence of death, and ordered a retrial before a judge other than Makhandia, J. The retrial proceeds without assessors, as it falls long after their abolition, and the appellant remains in custody pending the new trial.

Key legal issues

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01

Effect of repeal of section 262 of the Criminal Procedure Code on a partly-heard murder trial with assessors

Holding

The trial judge was not justified in summarily discharging the assessors mid-trial; section 23(3) of the Interpretation and General Provisions Act preserved the accused's accrued right to trial with assessors.

Reasoning

Section 23(3) of the Interpretation and General Provisions Act provides that a repeal does not affect a legal proceeding or remedy in respect of a penalty or punishment, which may be continued or enforced as if the repealing law had not been made. By the time the assessors were discharged on 21st November 2007, ten prosecution witnesses had testified and the right to trial with assessors had accrued. Neither the trial judge nor the court in Benard Kinoti M'Arachi referred to the saving provision. The appeal therefore succeeds.

p. 2
02

Whether, the conviction having been set aside, a retrial was appropriate

Holding

A retrial was ordered because there was evidence upon which a reasonable tribunal could found a conviction, but the retrial is conducted under the current law without assessors and before a different judge.

Reasoning

The court followed its earlier approach in Benard Kinoti M'Arachi, where a retrial had likewise been ordered, while correcting the footing: the accrued right was lost through the wrongful discharge, not through the repeal. Since there was sufficient evidence for a reasonable tribunal properly directing itself to convict, the interests of justice favoured a fresh trial rather than an outright acquittal. The fresh trial is governed by the amended Criminal Procedure Code, so assessors are excluded.

p. 2

Legal principles established

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  • A repeal of a written law does not affect investigations, legal proceedings or remedies already instituted; an accused whose trial had commenced with assessors retains the accrued right to be tried with their aid notwithstanding repeal of the assessor provisions.

Court orders

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  1. 1.Appeal allowed; conviction and sentence of death set aside
  2. 2.Appellant to be tried afresh before another judge other than Makhandia, J
  3. 3.In the new trial, the appellant is not entitled to be tried with the aid of assessors
  4. 4.Appellant to remain in prison custody pending the new trial

Authorities

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Legislation

  • Interpretation and General Provisions ActSection 23(3)
  • Penal CodeSection 203 as read with section 204
  • Criminal Procedure CodeSection 262
  • Statute Law (Miscellaneous Amendments) ActAct No. 7 of 2007

Cases cited (1)

  • Benard Kinoti M'Arachi vs. Republic
    Criminal Appeal No. 114 of 2008 (unreported)
On appeal from
High Court of Kenya at Nyeri
H.C.CR.C. No. 8 of 2006
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence of the High Court (murder trial), pursuant to the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peterson Maina Wanjiku v Republic [2009] KECA 433 (KLR)", Case Analysis (2009). Criminal Appeal 49 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/433/eng@2009-05-15

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