Edward Marwa Maisori & 2 others v Republic [2014] KECA 290 (KLR)
The bottom line
#Kenya's Court of Appeal refused the appellants' retrial request, holding that retrials are only granted where the original trial was illegal or defective and justice requires it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal can order a retrial instead of hearing an appeal on an incomplete record
No. A retrial can only be ordered where the original trial was illegal or defective, and the Court must first hear the appeal and examine the record before making such an order.
The Court applied the settled East African authorities, including Sumar v R, Mwangi v R and Fatehali Manji v R, which confine retrial orders to cases where the original trial was illegal or defective and the interests of justice require it. Since this Court had neither examined nor considered the record of appeal, and no illegality or defect in the original trial was alleged, the retrial application could not succeed. The Court could not set aside a conviction without hearing the appeal.
Whether a bench of the Court of Appeal may revisit interlocutory orders made by a bench of coordinate jurisdiction
It may not. The orders of 18th October 2013 directing that the appeal proceed to hearing were made by a competent three-judge bench and bind the present bench.
Counsel for the State pointed out that the same arguments had been advanced before another bench of the Court on 28th October 2013, when a ruling directed that the appeal be heard. The Court held that it is a bench of coordinate jurisdiction and lacks power to vary or set aside orders made by a competent bench of collegial jurisdiction; it therefore reiterated and re-affirmed those orders.
Whether the lapse of time since the offence makes a retrial unjust
Yes. Memory distortions over time mean a retrial ordered twelve years after the offence risks injustice and could amount to an acquittal through the back door.
The offence was committed in 2002. The Court took cognizance of the fact that witness memory becomes fainter with every passing day, so that a witness however honest cannot accurately recollect past events unless recorded soon after the event. The State further submitted that witnesses may not be found or their recollection may be inaccurate after more than twelve years, and that a retrial order could be an acquittal using the back door. These considerations weighed against a retrial.
Legal principles established
#- A bench of coordinate jurisdiction in the Court of Appeal cannot vary or set aside orders made by another competent bench of coordinate jurisdiction
- A retrial order cannot be made where the initial trial is not shown to be illegal or defective, and cannot be ordered without hearing the merits of the appeal and the parties on the substantive grounds
Court orders
#- 1.The orders made by the Court on 18th October 2013 are reiterated and re-affirmed
- 2.The appeal is directed to proceed to hearing
- 3.A new hearing date is to be given by the registry on a priority basis
- 4.The application for re-trial is dismissed
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR. Appeal Nos. 181, 182 & 183 of 2004
- Jurisdiction invoked
- Appellate criminal jurisdiction of the Court of Appeal hearing a second appeal from the High Court's dismissal of the appellants' first appeal in a criminal case
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Vijay Morjaria v Robert Obwocha & 4 others [2021] KEELC 681 (KLR)[2021] KEELC 681 (KLR)16 Nov 2021
- Peter Kamau Matiri v Republic[2020] KEHC 6608 (KLR)9 Apr 2020followed
Cite this brief
#Cite this brief
Caselaw, "Edward Marwa Maisori & 2 others v Republic [2014] KECA 290 (KLR)", Case Analysis (2014). Criminal Appeal No. 302 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/290/eng@2014-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.