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Court of AppealPartially AllowedCriminal Appeal No. 343 of 2008

Lawson Ole Kupele v Republic [2012] KECA 194 (KLR)

Court of Appeal
23 February 2012
1,059 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 quashed a murder conviction because part of the trial ran without assessors, but sent the accused back for a fresh trial instead of freeing him.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Waki, Onyango Otieno and Nyamu, JJ.A.) allowed this first appeal on the concession of learned State Counsel, who was held to have been right to concede. The appellant had been convicted of the murder of his younger brother by the High Court at Nakuru, the trial having commenced before Kimaru, J. on 26th September 2006 with three assessors empanelled. After the prosecution closed its case in July 2007, the defence hearing, final submissions and judgment on 9th October 2008 all took place without the assessors, with no summing up and no explanation on the record. The Court held that the repeal of the assessors procedure by Legal Notice No. 7 of 2007 with effect from 15th October 2007 was not retroactive, and that by virtue of section 23 of the Interpretation and General Provisions Act the trial ought to have proceeded with assessors throughout. The assessors' role was an important component of a fair trial and the accused had a legitimate expectation that they would express opinions on his culpability. The part of the trial conducted without assessors irreversibly vitiated the whole trial, which was declared a nullity, and the conviction and sentence were set aside. Weighing the parties' submissions, the Court exercised its discretion to order a retrial before any Judge of the High Court other than Kimaru, J., the appellant to remain in custody and be produced before the High Court within fourteen days. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the conduct of part of the murder trial without the aid of assessors vitiated the trial
  2. 2.Whether the amendment to the Criminal Procedure Code repealing trials with assessors applied retroactively to a trial commenced in 2006
  3. 3.Whether a retrial should be ordered and before whom

Key legal issues

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01

Retroactivity of the repeal of the assessors procedure

Holding

The amendment repealing trials with assessors did not apply to trials commenced before its commencement, which had to continue with assessors

Reasoning

The trial commenced on 26th September 2006 with three assessors properly empanelled. The repeal effected by Legal Notice No. 7 of 2007 came into force on 15th October 2007. Following prior decisions of the Court and section 23 of the Interpretation and General Provisions Act, the amendment was not retroactive, so the trial had to proceed with the aid of assessors throughout.

p. 1
02

Effect of conducting part of a capital trial without assessors

Holding

The part of the trial conducted without assessors vitiated the entire trial, which was declared a nullity, and the resulting conviction and sentence were set aside

Reasoning

The assessors heard six prosecution witnesses but were absent during the defence hearing, final submissions, and there was no summing up. The accused had a legitimate expectation that they would express opinions on his culpability; their role was an important component of a fair trial which an accused could not be deprived of. Their absence was not explained on the record.

p. 2
03

Whether a retrial should be ordered

Holding

A retrial was ordered before any High Court Judge other than Kimaru, J., the accused to remain in custody and be produced before the High Court within 14 days

Reasoning

Retrial is discretionary and made in the interests of justice, and is appropriate where a conviction might result on admissible evidence. Remitting to the same Judge was unsuitable as there was no certainty about the whereabouts of the trial Judge or the assessors; the prosecution was ready to mount a fresh trial with witnesses from the same village.

p. 2

Legal principles established

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  • The repeal of the assessors procedure by Legal Notice No. 7 of 2007 was not retroactive; a trial commenced before its commencement had to proceed with the aid of assessors, and a trial partly conducted without assessors is a nullity
  • A trial conducted partly with and partly without assessors, without explanation, irreversibly vitiates the whole trial and is a nullity
  • An order for retrial is discretionary and made in the interests of justice, and should only be made where, on a proper consideration of admissible or potentially admissible evidence, a conviction might result

Court orders

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  1. 1.The trial conducted partly without assessors is declared a nullity
  2. 2.The conviction and sentence meted out to the appellant are set aside
  3. 3.A retrial is ordered before any Judge of the High Court other than Kimaru, J.
  4. 4.The appellant shall be detained in prison custody for production before the High Court within 14 days of the order

The bench

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

majority

Wrote the judgment

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
H.C.Cr.C. No. 69 of 2009
Jurisdiction invoked
First appellate criminal appeal to the Court of Appeal against a conviction and sentence of the High Court for murder under the Penal Code

Relief refused

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Outright release of the appellant without retrial

The court was persuaded that a retrial would serve the interests of justice, the prosecution being ready to mount a fresh trial

p. 2

Costs

No costs order was made 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.

We find and hold that the part of the trial conducted without assessors irreversibly vitiated the whole trial and we declare it a nullity. It follows that the conviction and sentence meted out to the appellant must be and is hereby set aside.
p. 2Nullity of trial partly conducted without assessors
In the circumstances the order that commends itself to us is to order a retrial before any Judge of the High Court other than Kimaru, J. The applicant shall be detained in prison custody for production before the High Court within 14 days of this order.
p. 2Final orders - retrial and custody
The purpose of the Assessors is to make sure that, as far as possible in the most serious cases which are tried by the High Court, the decisions of fact have a broad base conforming with the notions of
p. 1Purpose of assessors in serious trials (quoting Kinuthia v Republic)

Issues in the judgment

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minor

The judgment is dated 23rd February 2012 on appeal No. 343 of 2008, but the appeal is stated to be from a High Court decision in H.C.Cr.C. No. 69 of 2009, a case number bearing a later year than the appeal number

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, "Lawson Ole Kupele v Republic [2012] KECA 194 (KLR)", Case Analysis (2012). Criminal Appeal No. 343 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/194/eng@2012-02-23

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