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Court of AppealPartially AllowedCriminal Appeal No. 135 of 2004

Richard Charo Mole v Republic [2010] KECA 400 (KLR)

Court of Appeal of Kenya
5 March 2010
SBS.E.O. BosireEGE.M. GithinjiPWP.N. Waki
1,860 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a murder-robbery conviction because the prosecution was unqualified and a new magistrate failed to tell the accused he could have witnesses reheard.

What this practically means

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Executive summary

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This second appeal, restricted to issues of law, concerned the validity of the appellant's trial for two counts of robbery with violence arising out of a 1993 cash-in-transit heist in which two police officers were killed. The trial began before G.A. Ndeda, SPM, who heard ten prosecution witnesses; W.A. Juma, SRM, later took over the part-heard trial without referring to section 200 of the Criminal Procedure Code, and the remaining prosecution and defence cases were conducted by Senior Sergeant Okumu, a police officer below the rank then required by section 85(2) for appointment as a public prosecutor. The Court held that both defects vitiated the trial: the succeeding magistrate's failure to inform the accused of his mandatory right under section 200(3) to demand a recall of witnesses was grossly prejudicial, and prosecution by an unqualified officer rendered the trial a nullity, following Ndegwa v Republic and Elirema & Another v Republic. The appeal was allowed and the conviction and sentence of death set aside. On whether to order a retrial, the Court applied the principles in Muiruri v Republic and Mwangi v Republic, balancing the illegality in the original trial and the appellant's seventeen years in custody against the gravity of the charges and the State's readiness to marshal witnesses. A retrial was ordered before a magistrate other than Ndeda and Juma, with the appellant remanded in custody and to be produced before the trial magistrate within fourteen days for an expeditious retrial. The binding propositions for lower courts concern the mandatory duty under section 200(3) and the qualification requirements for public prosecutors under section 85(2) before the 2007 amendment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial was a nullity because part of the prosecution was conducted by an unqualified person, a police officer below the rank of Assistant Inspector of Police, contrary to section 85(2) of the Criminal Procedure Code
  2. 2.Whether the conviction should be set aside for non-compliance with section 200 of the Criminal Procedure Code when a succeeding magistrate took over the part-heard trial
  3. 3.Whether, in the event the conviction is quashed, a retrial should be ordered

Key legal issues

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01

Non-compliance with section 200 of the Criminal Procedure Code where a succeeding magistrate continues a part-heard trial

Holding

The succeeding magistrate's failure to inform the accused of his right under section 200(3) to demand a recall of witnesses grossly prejudiced the appellant and vitiated the trial.

Reasoning

The trial was not a short one; ten prosecution witnesses had testified before the first magistrate, who had observed their credibility and demeanour. Section 200(3) imposes a mandatory duty on the court to inform the accused of the right to recall witnesses; no application by the accused is required. The omission was grossly prejudicial and, in an appropriate case, renders the trial a nullity. This Court's guidance in Ndegwa v Republic reinforces that section 200 should be used sparingly and that the magistrate delivering judgment should have seen and heard the witnesses.

p. 3
02

Prosecution by an unqualified person under section 85(2) of the Criminal Procedure Code

Holding

Senior Sergeant Okumu, being a police officer below the rank of Assistant Inspector, was unqualified to prosecute; his conduct of part of the trial vitiated it entirely.

Reasoning

Section 85(2) as applicable at the time of trial permitted appointment as public prosecutor only of an advocate of the High Court or a public officer not below the rank of Assistant Inspector of Police. The amendment by Act No. 7 of 2007 removing the rank requirement came after the trial. Following Elirema & Another v Republic, the Attorney-General had no power to appoint such an officer, and the trial conducted partly by him was a nullity.

p. 3
03

Whether a retrial should be ordered

Holding

Yes; a retrial was ordered despite the appellant's 17 years in custody, the gravity of the offences and the State's readiness to marshal witnesses outweighing the prejudice claimed.

Reasoning

Applying the retrial principles in Muiruri v Republic and Mwangi v Republic, the court weighed the illegality in the original trial and the lengthy incarceration against the seriousness of the charges (two deaths), the likelihood of conviction on admissible or potentially admissible evidence, and the State's readiness to produce police and bank witnesses at short notice. The interests of justice favoured a retrial, conducted expeditiously before a different magistrate.

p. 3

Legal principles established

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  • A succeeding magistrate must, mandatorily and without awaiting an application by the accused, inform the accused of the right under section 200(3) of the Criminal Procedure Code to demand that witnesses be resummoned and reheard; failure to do so may render the trial a nullity.
  • The Attorney-General had no power to appoint a police officer below the rank of Assistant Inspector as a public prosecutor under section 85(2) of the Criminal Procedure Code as it stood before amendment; prosecution by such an unqualified person vitiates the trial.
  • The principles governing whether to order a retrial after a conviction is quashed.

Court orders

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  1. 1.Declaration that the trial was a nullity
  2. 2.Appeal allowed; conviction and sentence set aside
  3. 3.Appellant to be retried before a magistrate of competent jurisdiction other than G.A. Ndeda and W.A. Juma
  4. 4.Appellant remanded in custody and to be produced before the trial magistrate within 14 days of the judgment for expeditious retrial

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
PW
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 274 of 1998
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to issues of law

Relief refused

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Outright release of the appellant without retrial

Retrial was in the interests of justice despite the lapse of time; the State was ready to marshal witnesses and the allegations were grave

p. 3

Costs

No costs order made; criminal appeal against the State.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The duty is reposed on the court and there is no requirement that an application be made by the accused person.
p. 3Mandatory duty of succeeding magistrate under section 200(3) of the Criminal Procedure Code
The trial was also vitiated by the subsequent participation of Senior Sergeant Okumu as the prosecuting officer.
p. 3Prosecution by unqualified person vitiates trial
Ordinarily a retrial will be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant.
p. 3Principles governing order of retrial
We order that the appellant shall be retried before a magistrate of competent jurisdiction other than G.A. Ndeda and W.A. Juma. In order to obviate further delay in the conclusion of the trial, we direct that the appellant be remanded in custody and he produced before the trial magistrate within 14 days of this judgment for expeditious retrial.
p. 4Final orders - retrial and remand

Issues in the judgment

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minor

Internal chronological inconsistency: the trial is said to have commenced before Kakamega Principal Magistrate's Court on 3rd June, 1997, yet ten prosecution witnesses had testified by 25th October, 1995, an earlier date; the judgment also states the events occurred 'About 17 years ago, in 1993' while the judgment was delivered in 2010.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Richard Charo Mole v Republic [2010] KECA 400 (KLR)", Case Analysis (2010). Criminal Appeal No. 135 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/400/eng@2010-03-05

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