Daphin Nasimiyu v Republic [2011] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal freed a woman convicted of murdering her sons because her judge wrongly dropped the trial assessors midway, and the evidence was too weak for a retrial.
What this practically means
#Executive summary
#Key legal issues
#Whether continuation of the trial without the assessors vitiated the trial
The trial was vitiated. The offence was committed and the trial started when trial with the aid of assessors was a right of the accused; the repeal of that provision was not retrospective and the trial had to continue with assessors. The second judge complied with sections 200(3) and 201(2) of the Criminal Procedure Code but failed to continue with the assessors as required by section 23(e) of the Interpretation and General Provisions Act, and gave no reasons for dropping them.
The court relied on its earlier decision in Wilson Uhuru Baje v Republic, holding that the repeal of the assessor provisions did not have retrospective effect and that it was improper for a judge to drop assessors midstream without giving reasons. Although counsel on appeal had not noticed the flaw, the court held it was a matter of law it could not ignore.
Whether a retrial should be ordered
No retrial was ordered. Adopting the test in Pascal Clement Braganya v R and Ahmed Sumar v Republic, the court concluded that on the admissible evidence a conviction might not result, and that a retrial nearly six years after the offence, with the appellant in custody throughout, would not serve the interests of justice.
The offence occurred on 7th December 2005, close to six years before the appeal, and the appellant had been in custody the whole time. The court also considered the merits: no one saw the appellant commit the offence, the case could only be proved on circumstantial evidence, and the unexplained presence of a mysterious man near the appellant's house at the material time left a serious gap in the prosecution case.
The sufficiency of the circumstantial evidence supporting the conviction
The conviction rested solely on the evidence of Susan and the post mortem doctor. Susan's evidence was internally inconsistent as to when she discovered the deaths, and the presence of an unidentified man near the appellant's house at about the time of the offence meant the inculpating facts were not incapable of explanation on any other reasonable hypothesis than the appellant's guilt.
Applying the principles in Republic v Kipkering arap Koske as read with Simon Musoke v R, the court found that Susan gave a different account in cross-examination about when she saw the bodies and when the children were killed, and that no evidence explained who the unknown man was or what he was discussing near the house. This left a serious gap making a conviction on circumstantial evidence unsustainable.
Legal principles established
#- A trial that begins with the aid of assessors must continue with them to the end; dropping them midstream without giving reasons vitiates the trial, and the repeal of the assessor system had no retrospective effect
- A retrial should only be ordered where, on a proper consideration of the admissible or potentially admissible evidence, a conviction might result, and where the interests of justice require it
- To convict on circumstantial evidence the inculpating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt
Court orders
#- 1.No order for retrial was made
- 2.The appellant is released forthwith unless otherwise lawfully held
- On appeal from
- High Court of Kenya at Bungoma
- H.C.CR.C. No. 1 of 2006
- Jurisdiction invoked
- First appellate jurisdiction over a conviction on murder charges under the Penal Code; appeal as of right from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daphin Nasimiyu v Republic [2011] KECA 75 (KLR)", Case Analysis (2011). Criminal Appeal No. 286 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/75/eng@2011-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.