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Court of AppealPartially AllowedCriminal Appeal 287 of 2008· [2010] KECA 457 (KLR)

Joseph Okoto Oloo & 4 others v Republic

Court of Appeal of Kenya
5 February 2010
ROR.S.C. OmoloEOE. O. O'KubasuDAD.K.S. Aganyanya
1,140 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed five murder convictions and death sentences because the trial judge died mid-case, but ordered the accused to face a fresh trial.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Kisumu (Omolo, O'Kubasu and Aganyanya, JJA) in a first appeal against conviction and sentence for murder. The five appellants were among seven persons originally charged before Kaburu Bauni, J with the murder of Joseph Abich Odhuno in November/December 2003. Two accused died during the trial and the trial judge also died after hearing all the evidence but before summing up to the assessors. Musinga, J took over the trial in April 2008, by which time the Criminal Procedure Code had been amended to abolish trials with the aid of assessors; he read the record, wrote judgment, convicted all five and sentenced them to death. Before him, the original judge had already dispensed with assessors one by one, leaving the composition of the assessors in confusion. The Court held that the trial was not conducted according to the law then in force, a point conceded by Senior Principal State Counsel, and warned that a wholesale take-over of part-heard trials under section 200 of the Code without regard to the circumstances of each case might cause injustice, particularly where witness credibility is central. Balancing the seriousness of the offence and the availability of credible evidence, the Court allowed the appeal in part, set aside the convictions and death sentences, and ordered a retrial de novo before a judge other than Musinga, J at the High Court at Kisii, without assessors, the appellants to remain in custody. No costs order was made and no authorities were cited.

Key legal issues

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01

Whether the trial was lawfully conducted when a second judge took over without summing-up to assessors and after assessors had been progressively dispensed with

Holding

The trial was not held according to the law that then existed; the State conceded the point and the Court agreed

Reasoning

The trial judge died before summing-up to the assessors; Musinga, J took over after the Criminal Procedure Code had been amended to abolish trials with assessors, so no assessor verdict was obtained. Meanwhile assessors had been irregularly dispensed with during the hearing. Counsel for the State conceded the appeal on this ground, and the Court respectfully agreed that the trial was not conducted according to law.

p. 2
02

Whether a retrial should be ordered notwithstanding the flawed trial

Holding

A retrial was ordered because the seriousness of the charge and the available evidence made a retrial the just course

Reasoning

The Court weighed the gravity of the murder charge, the possibility of conviction if the key witnesses were believed, and the fact that the accused described as vigilantes may have terrorised the village. Balancing these circumstances, it concluded a retrial would better serve justice, but directed the retrial be before a judge other than Musinga, J and without assessors, with the appellants in custody.

p. 2

Legal principles established

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  • Although section 200 of the Criminal Procedure Code permits a judge to take over a trial part-heard, a wholesale application of those provisions without regard to the circumstances of each case, such as the stage reached and the need to assess witness credibility, may result in injustice.
  • In deciding whether to order a retrial, an appellate court must take into account the nature of the charge and the nature of the available evidence.

Court orders

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  1. 1.Appeal allowed; conviction of each appellant set aside
  2. 2.Sentence of death imposed on each appellant set aside
  3. 3.Appellants to be tried de novo before a judge other than Musinga, J at the High Court at Kisii
  4. 4.Retrial to be conducted without the aid of assessors
  5. 5.Appellants to remain in custody pending the new trial
On appeal from
High Court of Kenya at Kisii
H.C. Cr. C. No. 20 of 2004
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence in a murder trial (Criminal Appeal from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Okoto Oloo & 4 others v Republic", Case Analysis (2010). Criminal Appeal 287 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/457/eng@2010-02-05

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