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Court of AppealPartially AllowedCriminal Appeal No. 149 of 2013· [2015] KECA 233 (KLR)

Charles Anunda Inzofu v Republic [2015] KECA 233 (KLR)

Court of Appeal of Kenya
29 October 2015
1,162 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 judge wrongly continued without assessors after the law changed mid-trial, ordering a retrial.

What this practically means

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Executive summary

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The appellant was convicted of the murder of his son Brian Inzofu by the High Court at Bungoma (Muchemi, J.) on 27th October 2010 and sentenced to death. His sole substantive ground on appeal was that the trial, which began in January 2005 with three assessors as required by sections 262 and 263 of the Criminal Procedure Code, proceeded after 18th October 2007 without assessors, even though only PW1 to PW3 had testified in their presence. The Statute Law (Miscellaneous Amendments) Act No. 7 of 2007 deleted the assessor provisions with effect from 15th October 2007, but the Court of Appeal, following Peter Ngatia Ruga and Brian Kariuki and applying section 23(3)(e) of the Interpretation and General Purposes Act, held that a trial commenced under the assessor regime had to continue with assessors to the end. A trial that begins with assessors and continues without them is unlawful unless section 294 of the Criminal Procedure Code is satisfied. The Court therefore declared the trial a nullity. On the retrial question it applied Muiruri v Republic and, weighing the loss of a young life against the appellant's over-ten-year custody and the availability of family-member witnesses, ordered a retrial before a different judge, without assessors, quashing the conviction and setting aside the sentence.

Key legal issues

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01

Effect of mid-trial repeal of the assessor requirement on an ongoing trial

Holding

A trial that commenced with assessors before 15th October 2007 had to continue with assessors notwithstanding the repeal; abandoning them midstream rendered the trial a nullity.

Reasoning

Sections 262 and 263 of the Criminal Procedure Code required High Court trials to be with the aid of assessors. The Statute Law (Miscellaneous Amendments) Act No. 7 of 2007 deleted those provisions with effect from 15th October 2007. Relying on section 23(3)(e) of the Interpretation and General Purposes Act and its own precedents, the Court held that a trial already underway under the old regime had to proceed with assessors to its conclusion; the trial court erred in discharging them after PW1-3 testified, and the trial was a nullity.

p. 2
02

Whether a retrial should be ordered following the nullity

Holding

Yes. Applying the principles in Muiruri v Republic, the interests of justice dictated a retrial because a life was lost, witnesses (mostly family members) were traceable, and witness-procurement difficulties were not shown.

Reasoning

The Court weighed the gravity of the offence against the appellant's prolonged custody. It accepted the respondent's assurance that family-member witnesses would be easy to trace, distinguishing this from cases where retrial is impracticable. It directed retrial before a different judge, without assessors, since the assessor regime no longer exists.

p. 3

Legal principles established

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  • A High Court trial that began with assessors before the repeal of sections 262 and 263 of the Criminal Procedure Code must continue with assessors to the end; continuing without them renders the trial a nullity unless departure is justified under section 294 of the Criminal Procedure Code.
  • By virtue of section 23(3)(e) of the Interpretation and General Purposes Act, a trial commenced under the assessor regime continues under that regime notwithstanding the mid-trial repeal.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction for murder quashed
  3. 3.Death sentence set aside
  4. 4.Appellant to be presented before the High Court at Bungoma before a judge other than F. N. Muchemi, J for retrial, without assessors, for the same offence

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Criminal Procedure Codesection 262
  • Criminal Procedure Codesection 263
  • Criminal Procedure Codesection 200
  • Criminal Procedure Codesection 294
  • The Statute Law (Miscellaneous Amendments) Act No. 7 of 2007deletion of sections 262 and 263 of the Criminal Procedure Code with effect from 15th October 2007
  • Interpretation and General Purposes Act, Chapter 2, Laws of Kenyasection 23(3)(e)
  • Legal Notice No. 7 of 2007commencement on 15th October 2007

Cases cited (7)

  • Peter Ngatia Ruga vs. Republic
    [2010] eKLR
  • Cherere Gikuli v R
    [1954] 21 EACA 304
  • Dickson Mwaniki M’Obici and another vs. R
    Criminal Appeal No. 78 of 2006
  • Bob Ayub alias Edward Gabriel Mbwana alias Robert Mandiga vs. Republic
    Cr. Appeal No. 106 of 2009
  • John Ndirangu Wahome vs. Republic
    [2012] eKLR
  • Brian Kariuki v Republic
    [2013] eKLR
  • Muiruri vs. Republic
    [2003] KLR 552
On appeal from
High Court of Kenya at Bungoma
H.C.CR. No. 2 of 2005
Jurisdiction invoked
First appellate jurisdiction over a High Court criminal trial (Criminal Appeal to the Court of Appeal); no specific constitutional provision stated

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, "Charles Anunda Inzofu v Republic [2015] KECA 233 (KLR)", Case Analysis (2015). Criminal Appeal No. 149 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/233/eng@2015-10-29

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