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Court of AppealPartially AllowedCriminal Appeal No. 207 of 2008

Vincent Ondieki Omao v Republic [2012] KECA 222 (KLR)

Court of Appeal of Kenya
23 February 2012
797 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 threw out a murder conviction because the trial judge skipped consulting the assessors required under the law at the time, ordering a fresh trial instead.

What this practically means

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Executive summary

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The appellant was charged with the murder of Laban Maneno Ongera, allegedly committed on the night of 5th and 6th September 2005, and tried in the High Court at Nakuru before Kimaru, J. The trial was conducted, start to finish, with the aid of three assessors under section 297 as read with section 261 of the Criminal Procedure Code, as the law then required. Before judgment, however, the Criminal Procedure Code was amended (with effect from 15th October 2007) to exclude assessors in murder trials. The trial Judge delivered a judgment on 7th May 2008 convicting the appellant of murder and sentencing him to death without summing up the evidence to the assessors or recording their opinions, holding that the judgment was delivered under section 322(1) as amended. On appeal, the appellant relied on section 23(3) of the Interpretation and General Provisions Act and on Wanjiku v. Republic [2009] KLR 210, submitting that the repeal did not affect pending proceedings. Counsel for the Republic conceded the appeal but sought a retrial. The Court of Appeal held that since the entire trial had been completed with the aid of assessors before the amendment, and only the summing up remained, the trial Judge erred in law in convicting without the benefit of the assessors' opinions. The court allowed the appeal, set aside the conviction and death sentence, ordered a retrial before another judge under the current law and without assessors, and remanded the appellant in custody pending the retrial. No costs order was made. The decision binds lower courts on the transitional preservation of the assessors procedure for trials concluded before the 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 Judge erred in law in convicting the appellant without the summing up to, and the opinion of, the assessors, after the trial had been conducted with the aid of assessors before the Criminal Procedure Code was amended
  2. 2.Whether section 23(3) of the Interpretation and General Provisions Act preserved the requirement of assessors for a trial completed before the amendment
  3. 3.Whether, if the conviction is set aside, a retrial should be ordered

Key legal issues

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01

Effect of repeal/amendment of the assessors regime mid-trial

Holding

Section 23(3) of the Interpretation and General Provisions Act preserves pending legal proceedings so that a trial completed with assessors before the amendment required summing up and the assessors' opinions before conviction.

Reasoning

The trial was fully conducted with the aid of assessors under section 297 as read with section 261 of the Criminal Procedure Code before the amendment took effect on 15th October 2007. Under section 23(3)(4) of the Interpretation and General Provisions Act, a repeal does not affect legal proceedings already instituted unless a contrary intention appears. The only step remaining was the summing up under section 322(1). The trial Judge nonetheless convicted without recording the assessors' opinions, which on the authority of Wanjiku v Republic was an error of law.

p. 2
02

Whether a retrial should be ordered

Holding

A retrial was ordered, to be conducted under the current law without assessors, with the appellant remanded in custody.

Reasoning

Applying the established principles for ordering a retrial, the court weighed the closeness of the relationship between the appellant and the deceased, the fact the deceased was killed inside his own house, and the availability of prosecution witnesses. It concluded that justice required a fresh trial before another judge under the law as it currently stands, and that the appellant remain in custody in the interim.

p. 2

Legal principles established

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  • Where an entire trial has been completed with the aid of assessors before the Criminal Procedure Code was amended to exclude assessors in murder trials, the trial Judge must sum up to the assessors and obtain their opinions before convicting; conviction without that benefit is an error in law, section 23(3) of the Interpretation and General Provisions Act preserving the pre-amendment procedure.
  • A retrial ordered after a conviction is quashed must be conducted in accordance with the law current at the time of the retrial, not the law in force at the original trial.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction for murder set aside
  3. 3.Sentence of death set aside
  4. 4.Appellant to be retried before another judge
  5. 5.The retrial to be held in accordance with the current law and without the aid of assessors
  6. 6.Appellant remanded in custody pending the retrial

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 Nakuru
H.C.CR.C. No. 84 of 2005
Jurisdiction invoked
First appellate appeal to the Court of Appeal against conviction and sentence on a murder charge (Criminal Appeal No. 207 of 2008); specific statutory basis not stated in the judgment

Relief refused

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Outright acquittal / unconditional release in place of the retrial sought by the State's concession limited to retrial

The court considered a retrial just in the circumstances, the appellant having been housed by the deceased who was found killed inside the house

p. 2

Costs

No costs order made

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.

In this case, the entire trial was completed with aid of assessors before the law was amended. All what remained was the summing up to assessors.
p. 2Transitional application of the assessors regime
the trial Judge erred in law in convicting the appellant without the benefit of the opinion of the assessors
p. 2Error in failing to sum up to assessors
we allow the appeal, set aside the conviction, the sentence of death and order that the appellant be re-tried before another judge. The retrial shall be held in accordance with the current law and without the aid of assessors. The appellant shall be remanded in custody pending the retrial.
p. 2Final orders / disposition

Issues in the judgment

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minor

The judgment cites section 23(3) of the Interpretation and General Provisions Act inconsistently, referring elsewhere to 'section 23(3)(e)' when construing the provision in Wanjiku v. Republic.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Vincent Ondieki Omao v Republic [2012] KECA 222 (KLR)", Case Analysis (2012). Criminal Appeal No. 207 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/222/eng@2012-02-23

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