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Court of AppealDismissedCriminal Appeal No. 111 of 2006· [2014] KECA 94 (KLR)

Benson Matheka Juma v Republic [2014] KECA 94 (KLR)

Court of Appeal
20 June 2014
3,705 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 dismissed a murder appeal, ruling the flawed trial procedure didn't matter because the evidence against the accused was overwhelming.

What this practically means

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Executive summary

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The appellant was convicted of the murder of Police Constable Thiongo (the deceased) and sentenced to death by the High Court at Machakos (Wendoh, J.). On appeal, he advanced six grounds, the principal one being that the trial was fundamentally flawed: three assessors were selected at the outset, one ceased participating during the prosecution case without any recorded reason, a new assessor was substituted after the close of the defence case, and no assessor verdict appeared on the record. Prosecution counsel conceded the first ground. The Court of Appeal held that this state of affairs contravened Section 298(2) of the Criminal Procedure Code (now repealed) and was a fatal flaw vitiating the entire trial, following its own decision in Mutua Kiminza v Republic and the East African authority Cherere Gikuli v R. However, the Court declined to order a retrial. It reasoned that since the Statute Law (Miscellaneous Amendments) Act, 2007 abolished the role of assessors in murder trials, a retrial would proceed without assessors and the original defect could not recur; and since the circumstantial evidence against the appellant was overwhelming - he had attacked PW6 with a sword, the deceased was found dead in a pool of blood near the appellant's home, and the appellant was found with the deceased's gun - a retrial would be a mere formality. Applying the Koske test for circumstantial evidence, the Court rejected the appellant's explanation as implausible, dismissed grounds 2 to 6, and dismissed the appeal, thereby affirming the conviction and sentence. No costs order was made. The judgment binds lower courts on the assessor-compliance rule and on the discretionary test for retrials.

Key legal issues

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01

Compliance with Section 298 of the Criminal Procedure Code in trials with assessors

Holding

The trial was fatally flawed: one assessor was absent without reason and another was substituted after the close of the defence case, and no assessor verdict was on record

Reasoning

The court found that after selection of three assessors, one did not attend throughout the prosecution case and no reason was recorded; after closure of the defence case a new assessor replaced one of the two remaining; when the Judge summed up, only one assessor had fully participated. Only one assessor could effectively give a valid verdict in law. This contravened Section 298(2), making the proceedings a nullity.

p. 5
02

Whether a retrial should be ordered despite the flawed trial

Holding

No retrial should be ordered because the assessors regime was repealed by the Statute Law (Miscellaneous Amendments) Act, 2007 and the circumstantial evidence was overwhelming

Reasoning

The court reasoned that since trials with assessors are no longer required, any retrial would proceed without assessors, removing the very defect that vitiated the original trial. Given the strength of the circumstantial evidence, a retrial would be a mere formality entailing unnecessary use of scarce judicial time and expense. The interest of justice therefore did not require a retrial.

p. 6
03

Sufficiency of the circumstantial evidence

Holding

The circumstantial evidence overwhelmingly pointed to the appellant as the deceased's assailant and sustained the conviction notwithstanding the trial's nullity on procedure

Reasoning

The appellant had chopped off the finger of PW6 with a Somali sword, the deceased's body was found dead in a pool of blood near the appellant's home, and the appellant was found in possession of the deceased's gun, admitting he disarmed him. The court applied the test that exculpatory facts must be incompatible with innocence and rejected the appellant's explanation as implausible.

p. 6

Legal principles established

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  • Non-compliance with Section 298(2) of the Criminal Procedure Code (now repealed), where two of three assessors are absent or replaced without cause, is a fatal flaw vitiating a murder trial
  • A retrial is ordered only where the interest of justice requires it and it is unlikely to cause injustice to the appellant, considering the defects in the original trial and the elapsed time
  • In a case depending exclusively on circumstantial evidence, the court must find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than guilt
  • A retrial should not be ordered unless the appellate court considers that on a proper consideration of the evidence a conviction might result

Court orders

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  1. 1.Appeal dismissed

Authorities

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Legislation

  • Penal CodeSections 203 and 204
  • Criminal Procedure Code (now repealed)Section 298(1)
  • Criminal Procedure Code (now repealed)Section 298(2)
  • Criminal Procedure Code (now repealed)Section 297
  • Criminal Procedure Code (as cited within Cherere Gikuli v R.)Section 294
  • Statute Law (Miscellaneous Amendments) Act, 2007Provisions abolishing the role of assessors in murder trials

Cases cited (9)

  • Okeno v Republic
    (1972) E.A. 32
  • Mutua Kiminza v Republic
    Criminal Appeal No. 454B of 2007
  • Dickson Mwaniki M'obici and another vs. Republic
    Criminal Appeal No. 78 of 2006
  • Cherere Gikuli vs. R.
    (1954) 21 EACA 304
  • Muthemba s/o Ngonchi vs. R.
  • Muiruri v Republic
    [2003] KLR 552
  • Mwangi v Republic
    [1983] KLR 522
  • Joseph Karuru Mungai v Republic
    Criminal Appeal No. 223 of 2009
  • Rex v Kipkering arap Koske
    [1949] 16 EACA 135
On appeal from
High Court of Kenya at Machakos
HC. CR. A. No. 21 of 2002
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court in criminal matters (Court of Appeal, Criminal Appeal; the judgment does not cite a specific constitutional provision)

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, "Benson Matheka Juma v Republic [2014] KECA 94 (KLR)", Case Analysis (2014). Criminal Appeal No. 111 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/94/eng@2014-06-20

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