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Court of AppealAllowedCriminal Appeal No. 53 of 2012· [2013] KECA 146 (KLR)

Brian Kariuki v Republic

Court of Appeal of Kenya
13 November 2013
2,501 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a murder conviction because the trial continued without the assessors it had started with, and ordered a fresh retrial.

What this practically means

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Executive summary

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The appellant, Brian Kariuki, was convicted of the murder of Lydia Igandu by the High Court at Embu (Khaminwa, J.) on 19th February 2008 and sentenced to death. On appeal to the Court of Appeal at Nyeri, he raised eleven grounds, chiefly that the trial Judge failed to sum up the evidence to the assessors, that the assessors did not attend the defence hearing and gave no verdict, that proceedings were partly conducted in English without translation, that contradictions in the prosecution case were ignored, and that the burden of proof was shifted to him. The Court of Appeal, in a single judgment of the court delivered by Visram, Koome and Odek, JJ.A, noted that the trial commenced on 30th January 2007 with three assessors, but the assessors were present only during the prosecution case and no reason for their absence was recorded. Since Legal Notice No. 7 of 2007, which repealed trial with assessors, only came into force on 15th October 2007, the trial should have continued with the assessors by virtue of Section 23(3)(e) of the Interpretation and General Purposes Act. Applying Peter Ngatia Ruga and Cherere Gikuli, the Court held the trial was a nullity. On the question of retrial, guided by Bernard Lolimo Ekimat and other authorities, and considering that life was lost, the appellant had been in custody since 2006 and the witnesses were available, the Court ordered a retrial. The appeal was allowed: the conviction was quashed, the sentence set aside, and the appellant directed to face retrial before a Judge other than Khaminwa, J., without assessors. No costs order was recorded.

Key legal issues

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01

Whether continuation of a murder trial without assessors, after the trial had begun with them, rendered the trial a nullity

Holding

Yes. The trial began on 30th January 2007 with the aid of three assessors, before Legal Notice No. 7 of 2007 came into force on 15th October 2007 repealing trials with assessors. The assessors were present only during the prosecution case, no reason for their absence was recorded, and the trial should have continued with them under the Interpretation and General Purposes Act; the trial was therefore a nullity.

Reasoning

The court applied Peter Ngatia Ruga v Republic and Cherere Gikuli v Republic, holding that a trial begun with the prescribed number of assessors is unlawful if it continues with fewer, unless within section 294 of the Criminal Procedure Code. Section 23(3)(e) of the Interpretation and General Purposes Act preserved the assessor procedure for trials commenced before repeal. The record showed the assessors were absent for the defence case without recorded reason, so the nullity was incurable.

p. 4
02

Whether a retrial should be ordered notwithstanding the nullity of the trial

Holding

Yes. Weighing the loss of life, that the appellant had been in custody since 2006, and that prosecution witnesses were still available, the court found a retrial appropriate in the interests of justice.

Reasoning

Relying on Ahmed Sumar v Republic, Pascal Ouma Ogola v Republic, Muiruri v Republic and Bernard Lolimo Ekimat v Republic, the court adopted the principle that a retrial depends on the particular facts and should be ordered only where the interests of justice require it. Those interests were met here, and the retrial was directed before a judge other than Khaminwa, J., and without assessors.

p. 4
03

The duty of a first appellate court

Holding

The Court is obligated to re-evaluate and re-analyse the evidence afresh and draw its own conclusions, making allowance for the trial court's advantage of seeing and hearing witnesses.

Reasoning

Following Okeno v Republic, the court restated that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence, that the first appellate court must weigh conflicting evidence and make its own findings, citing Pandya v R, Shantilal M. Ruwala v R and Peters v Sunday Post.

p. 3

Legal principles established

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  • A murder trial that commenced with assessors before the repeal of trial by assessors must continue with the aid of assessors to its conclusion; a trial that continues without them is a nullity.
  • On a first appeal the appellate court must re-evaluate and re-analyse the evidence and reach its own conclusions.
  • An order for retrial should only be made where the interests of justice require it, on the particular facts and circumstances of the case.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The appellant's conviction for the offence of murder is quashed and the sentence imposed is set aside
  3. 3.The appellant be presented to the High Court at Embu before a Judge other than Khaminwa, J., for retrial of the same offence but without assessors
On appeal from
High Court of Kenya at Embu
H.C.C.CR. No. 3 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal in a criminal matter (High Court conviction on a charge of murder under Section 203 as read with Section 204 of the Penal Code)

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, "Brian Kariuki v Republic", Case Analysis (2013). Criminal Appeal No. 53 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/146/eng@2013-11-13

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