Nathan Oduor Odindi v Republic

The trial began on 4th June 2003, long before Act No. 7 of 2007 repealed trial with assessors. Under section 23(3)(e) of the Interpretation and General Provisions Act, the accrued right to trial with assessors survived the repeal. The assessors had heard the entire prosecution case; dropping them mid-stream, without summarising the case to them or receiving their opinions, deprived the appellant of an accrued right and of the fair hearing guaranteed by section 77 of the retired Constitution, now Article 50.

Section 294 permits discharge of an assessor only where he is prevented by sufficient cause from attending throughout the trial or where it is not practicable immediately to enforce his attendance. The judge made no enquiry into either condition. Equally, an assessor once discharged should not have been readmitted to the panel. The court nonetheless held these errors did not occasion injustice since nothing was heard while they subsisted.

When the judge took over from Kariuki, J., counsel simply asked for a date to continue from where the case had reached; the judge never complied with section 200 as read with section 201. Those provisions are meant to protect the accused's rights and ensure fairness and must be communicated to the accused personally; reliance on counsel's readiness to proceed cannot cure the omission.

The court applied the established factors: the defects in the original trial, the lapse of time since arraignment, whether the mistakes were of the prosecution's making, the likelihood of a successful conviction on the available evidence, and above all the interests of justice. The State itself conceded that mounting a successful prosecution after eleven and a half years would be difficult, and the appellant had already spent over eleven years in custody.