Dennis Mbogho Apudho v Republic [2010] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a murder conviction and death sentence because the trial judgment had been lost, and ordered a fresh retrial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What orders should follow where the judgment of the superior court and the trial judge's summing-up notes to the assessors have disappeared and cannot be traced?
Key legal issues
#Effect of the loss of the superior court's judgment and the summing-up notes to assessors on a first appeal against conviction for murder
The Court of Appeal cannot adjudicate on an appeal without the judgment of the superior court; where the judgment and summing-up notes are irretrievably lost, the conviction and sentence must be set aside and a retrial de novo ordered, and all parties' consent to a retrial supports that course.
The trial judge convicted the appellant of murder after assessors unanimously advised a guilty verdict, reserving judgment for 24 March 2003, though it was actually delivered on 4 April 2004. Both the judgment and the summing-up notes had been searched for since 2005 and could not be traced. Without the judgment there was nothing upon which the Court could adjudicate. Counsel for the appellant, the Deputy Public Prosecutor and the appellant himself all asked for a retrial, which the Court accepted as the most feasible resolution.
Whether a retrial ordered long after the abolition of trial with assessors must be conducted with assessors
No. Even though trial with the aid of assessors was mandatory when the alleged offence was committed, the institution having since been abolished, the retrial need not be conducted with assessors.
The offence was allegedly committed in 2000 when the assessors system was still mandatory. By the date of the appeal the institution of assessors had been abolished. The Court directed that the retrial proceed without assessors, while expressing the hope that the prosecution would terminate the new trial by other measures if it could not trace its witnesses within a reasonable time.
Legal principles established
#- Where the judgment of the superior court and the trial record essential to adjudication are lost and cannot be traced, the appellate court cannot adjudicate and the appropriate remedy is to set aside the conviction and order a retrial de novo.
- Where the institution of assessors has been abolished, a retrial ordered after abolition need not be conducted with the aid of assessors even though assessors were mandatory at the time of the original offence.
Court orders
#- 1.Appeal allowed
- 2.Conviction for murder set aside
- 3.Sentence of death set aside
- 4.Appellant to be tried de novo, with the new trial handled as a matter of priority
- 5.The retrial shall not be conducted with the aid of assessors
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.CR.C. No. 7 of 2001
- Jurisdiction invoked
- First appellate jurisdiction over a High Court conviction and sentence on a charge of murder (Criminal Appeal jurisdiction of the Court of Appeal)
Relief refused
#Immediate release of the appellant without retrial
All parties, including the appellant himself, sought a retrial as the most feasible way of resolving the situation, and the court acceded
Costs
No costs order made in the criminal appeal.
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 absence of the judgment of the superior court, there is really nothing upon which the Court can adjudicate.
Accordingly, we allow the appeal, set aside the conviction for murder and the sentence of death, and order that the appellant shall be tried de novo and that his trial shall be handled as a matter of priority.
Though the crime was allegedly committed at a time when trial with the aid of assessors was mandatory, the institution of assessors was abolished sometime back and we direct that it will not be necessary to retry the case with the aid of assessors.
Issues in the judgment
#The judgment records that judgment was reserved to 24th March 2003 but was in fact given on 4th April 2004, while the appeal header describes the conviction and sentence as dated 3rd April 2003; the dates are internally inconsistent.
The heading reads 'IN THE HIGH COURT OF KENYA AT KISUMU' although the bench comprises three Judges of Appeal delivering an appellate judgment from a High Court conviction, indicating the court is the Court of Appeal at Kisumu.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Mbogho Apudho v Republic [2010] KECA 33 (KLR)", Case Analysis (2010). Criminal Appeal 335 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/33/eng@2010-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.