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Court of AppealPartially AllowedCriminal Appeal No. 327 of 2010· [2015] KECA 426 (KLR)

Philip Kipngetich Terer v Republic [2015] KECA 426 (KLR)

Court of Appeal of Kenya
25 September 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaSKS. Gatembu Kairu
1,098 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a death-row conviction because a new Judge never told the accused he could have witnesses reheard — but ordered a retrial anyway.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Maraga, Musinga and Gatembu, JJ.A.) allowed this criminal appeal in part. The appellant's trial had been conducted by three High Court Judges: Waweru, J. heard the case fully but was transferred before summing up; G.B.M. Kariuki, J. reheard it de novo but was also transferred; Lenaola, J. then took over, but failed to comply with Section 200(3) of the Criminal Procedure Code, which requires a succeeding Judge to inform the accused of the right to demand that any witness be resummoned and reheard. On the hearing of the appeal, Senior Assistant Director of Public Prosecutions Mr. Ogoti conceded the appeal on that ground but sought a retrial. The court declared the trial a nullity under Section 200(4) of the CPC, quashed the conviction and set aside the death sentence. On the contested question of retrial, the court applied the long-settled principles in Fatehali Manji v Republic and subsequent authorities, including Muiruri v R and Mwangi v Republic, to the effect that a retrial is ordered only where the original trial was illegal or defective, where a conviction might result on admissible evidence, and where the interests of justice require it without causing injustice to the accused. Balancing those interests, the court ordered that the appellant be retried by another Judge, refused his plea to be released unconditionally, directed transmission of the file to the High Court at Kakamega for mention, and ordered that he remain in custody in the interim. No costs order was made.

Key legal issues

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01

Compliance with Section 200(3) of the Criminal Procedure Code on change of trial Judge

Holding

Failure to inform the accused of the right to demand that witnesses be resummoned and reheard vitiated the trial, which was declared a nullity under Section 200(4).

Reasoning

The trial had been conducted by three Judges. Lenaola, J., who took over from G.B.M. Kariuki, J., did not inform the appellant of his statutory right but simply perused the proceedings, summed up to the assessors and delivered judgment. The court agreed with the prosecution's concession that the omission caused prejudice to the appellant, rendering the trial a nullity.

p. 2
02

Whether a retrial should be ordered

Holding

The appeal was allowed, the conviction quashed and the death sentence set aside, but the court ordered a retrial before another Judge because the interests of justice demanded it.

Reasoning

Applying the settled principles in Fatehali Manji and subsequent cases, the court held that the defect here was a mistake of the trial court for which the prosecution was not to blame, that each case depends on its own facts, and that a retrial lies where the interests of justice require it and a conviction might result on admissible evidence. It declined to elaborate further to avoid prejudicing the retrial.

p. 3

Legal principles established

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  • Where a succeeding Judge commences hearing of part-heard proceedings, the accused must be informed of the right under Section 200(3) CPC to demand that any witness be resummoned and reheard; failure renders the trial a nullity under Section 200(4).
  • A retrial is ordered only where the original trial was illegal or defective, not where evidence is insufficient, and only where the interests of justice require it and it is unlikely to cause injustice to the accused.
  • In deciding whether to order a retrial, the court must strike a balance between the interests of justice and those of the accused person.

Court orders

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  1. 1.Declared the appellant's trial a nullity pursuant to Section 200(4) of the CPC
  2. 2.Allowed the appeal
  3. 3.Quashed the appellant's conviction
  4. 4.Set aside the death sentence imposed upon the appellant
  5. 5.Ordered that the appellant be retried by another Judge
  6. 6.Directed that the High Court file be transmitted to and the case be mentioned at the High Court at Kakamega as soon as possible for taking a hearing date
  7. 7.Directed that in the interim the appellant shall remain in custody
On appeal from
High Court of Kenya at Kakamega
H.C.CR.C. No. 33 of 2000
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code following conviction by the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Philip Kipngetich Terer v Republic [2015] KECA 426 (KLR)", Case Analysis (2015). Criminal Appeal No. 327 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/426/eng@2015-09-25

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