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Court of AppealPartially AllowedCriminal Appeal No. 115 of 2009

David Benson Kipkerich Kemei Chumo v Republic [2011] KECA 225 (KLR)

Court of Appeal of Kenya
9 June 2011
795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a murder trial could not legally drop its assessors mid-way, cancelling the conviction but ordering a fresh trial.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Tunoi, O'Kubasu and Aganyanya, JJ.A) allowed in part the appellant's appeal against conviction and sentence of death for the double murder of his wife and son in April 2004, imposed by Kimaru, J of the High Court at Kericho on 15th May 2009. The sole ground canvassed concerned procedure: the trial began on 4th November 2004 with three assessors empanelled, but on 6th November 2007, after six witnesses had been heard, the learned Judge dispensed with the assessors' attendance on the strength of amendments to the Criminal Procedure Code effected by Act No. 7 of 2007 with effect from 15th October 2007. The court held that since the trial had commenced when assessor trials were still lawful, Section 23(3)(e) of the Interpretation and General Purposes Act required the trial to continue with assessors to the end; following Peter Ngatia Ruga v Republic, the mid-trial discharge of assessors was a grave misdirection that vitiated the trial, which was declared a nullity. However, rather than acquit, the court ordered a retrial: the evidence of the brutal killings was strong, witnesses were readily available, and a successful retrial could be mounted. The conviction was quashed, the death sentence set aside, and the appellant ordered retried without assessors under the post-2007 law, remanded in police custody for 14 days, with directions that the retrial be conducted expeditiously. The court deliberately refrained from discussing the merits of the other issues raised.

Questions the Court framed

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

  1. 1.Whether the learned Judge's mid-trial discharge of the assessors, in reliance on amendments to the Criminal Procedure Code effected by Act No. 7 of 2007, vitiated the trial
  2. 2.Whether, the trial having been vitiated, a retrial should be ordered

Key legal issues

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01

Whether repeal of the assessor provisions mid-trial justified dispensing with assessors already empanelled

Holding

No. Where the trial began when assessors were part of the law, Section 23(3)(e) of the Interpretation and General Purposes Act applied, and the trial should have continued with assessors to the end. Dispensing with them was a grave misdirection vitiating the trial.

Reasoning

The trial commenced on 4th November 2004 with three assessors empanelled. The amendment (Act No. 7 of 2007, effective 15th October 2007) abolished assessors, but under Section 23(3)(e) of the Interpretation and General Purposes Act the repealed law continued to govern the pending trial. Relying on Peter Ngatia Ruga v Republic, the court held the judge's order dispensing with assessors mid-trial was a grave misdirection rendering the trial a nullity.

p. 2
02

Whether a retrial should be ordered despite the vitiated trial

Holding

Yes. The evidence against the appellant was strong, witnesses were available, and a successful retrial could be mounted; a retrial was in the best interest of justice.

Reasoning

Although the trial was a nullity, the court declined to acquit. It noted the two deceased were brutally hacked to death, the appellant had been in custody for about seven years, witnesses were easily available being mostly family members, and a successful retrial could be mounted. On those facts, a retrial was in the best interest of justice, and the retrial proceeds without assessors under the post-2007 law.

p. 2

Legal principles established

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  • Where a trial commenced while trials with the aid of assessors were still lawful, a subsequent repeal of the assessor provisions does not dispense with assessors in that ongoing trial; Section 23(3)(e) of the Interpretation and General Purposes Act requires the trial to continue with assessors to the end
  • Discharging assessors mid-trial in such circumstances is a grave misdirection that vitiates the trial and renders it a nullity

Court orders

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  1. 1.The trial is declared a nullity
  2. 2.The conviction is quashed and the sentence of death is set aside
  3. 3.The appellant shall be retried before the superior court under the law obtaining after Act No. 7 of 2007, without the aid of assessors
  4. 4.The appellant is remanded in police custody for 14 days
  5. 5.The retrial is to be conducted expeditiously

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kericho
H.C.CR.C. No. 21 of 2004
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence of the High Court in a murder trial

Relief refused

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Outright acquittal / release of the appellant

The court found the evidence established the brutal murders and that a successful retrial was feasible, so it was in the best interest of justice to order a retrial instead

p. 2

Costs

No order as to costs is recorded in the judgment

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 provisions of Section 23 (3) (e) of the Interpretation and General Purposes Act (Cap 2 Laws of Kenya) were to be applied and the trial should have continued with the aid of assessors to the end
p. 2Repeal and pending trials - Interpretation and General Purposes Act s.23(3)(e)
It must follow, therefore, that the trial the subject matter of this appeal was vitiated and we declare it a nullity.
p. 2Effect of discharging assessors mid-trial
In those circumstances, we think that it is in the best interest of justice to order a retrial and we do so.
p. 2Discretion to order retrial
In the result, the appeal is allowed. The conviction is quashed and the sentence of death imposed upon the appellant is set aside.
p. 2Final orders - disposal
The appellant shall be re-tried before the superior court and the trial shall proceed under the provisions of the law obtaining after the repeal of the sections relating to the trials with the aid of assessors by Act No. 7 of 2007, that is, without the aid of assessors.
p. 2Final orders - retrial terms

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "David Benson Kipkerich Kemei Chumo v Republic [2011] KECA 225 (KLR)", Case Analysis (2011). Criminal Appeal No. 115 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/225/eng@2011-06-09

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