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Court of AppealPartially AllowedCriminal Appeal No. 499 of 2010· [2016] KECA 365 (KLR)

Charo Karisa Salimu v Republic [2016] KECA 365 (KLR)

Court of Appeal of Kenya
29 July 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,464 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 freed a man held 16 years because his murder trial took too long and was legally flawed.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A.) allowed a murder appeal arising from a High Court conviction dated 25 October 2010 in Criminal Case No. 16 of 2002. The appeal rested on two principal grounds. First, the appellant was tried and held in custody for an inordinately long period - the trial took over 10 years from charge to judgment, with 16 years of incarceration - contrary to sections 72(5) and 77 of the former Constitution and Article 50(2)(e) of the Constitution of Kenya, 2010, which guarantee a trial that begins and concludes without unreasonable delay. The Court drew on Canadian jurisprudence (R v Morin; Jordan v R) but declined to fix a presumptive ceiling for Kenya, reserving that for an appropriate case. Second, and determinatively, the trial judge discharged all three assessors mid-trial on 11 February 2008 on the mistaken belief that the repeal of sections 262 and 263 of the Criminal Procedure Code by Act No. 7 of 2007 entitled the parties or the court to dispense with them. Relying on Charles Mwangi Muraya, Peter Ngatia Ruga, Bob Ayub and old East African Court of Appeal authority, and on section 23(3) of the Interpretation and General Provisions Act, the Court held that a trial commenced with assessors before the repeal had to be concluded with them, and that the trial was therefore a nullity. Applying Muiruri v R, the Court declined to order a retrial after 16 years, allowed the appeal, quashed the conviction and set the appellant at liberty forthwith unless otherwise lawfully held. The decision binds subordinate courts on the mandatory preservation of assessor trials commenced before the 2007 repeal and on the principles governing retrials after nullity.

Key legal issues

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01

Inordinate delay and the right to a fair trial

Holding

The delay of over 10 years in concluding the trial, with the appellant in incarceration for 16 years, meant the appellant was not accorded a hearing within a reasonable time, though the court declined to fix a presumptive ceiling.

Reasoning

The court traced the chronology of adjournments, changes of judges and assessors, and compared Canadian jurisprudence (R v Morin; Jordan v R) which sets presumptive ceilings. It held Article 50(2)(e) is not aspirational and that delay has far-reaching ramifications for accused, victims and the public, but expressly left open whether Kenyan courts should adopt presumptive ceilings in an appropriate case.

p. 4
02

Discharge of assessors mid-trial after repeal of the assessor provisions

Holding

The discharge of the assessors on the mistaken belief that the repealed law allowed parties or the court to dispense with them rendered the trial a nullity; a trial begun with assessors had to be concluded with them.

Reasoning

Sections 262 and 263 of the Criminal Procedure Code mandatorily required three assessors for High Court trials before the 2007 amendment. Section 23(3)(b) and (e) of the Interpretation and General Provisions Act preserved pending proceedings. Consistent with Charles Mwangi Muraya, Peter Ngatia Ruga and Bob Ayub, the court held the learned Judge erred in distinguishing Bernard Kinoti M'Arachi on the basis of an alleged waiver, since the right was mandatory.

p. 5
03

Whether a retrial should be ordered following a nullified trial

Holding

No retrial was ordered; after 16 years it would serve no purpose and would occasion injustice.

Reasoning

Applying Muiruri v R, the court weighed the length of time elapsed since arrest, whether the mistake was of the prosecution's making, and the injustice of a retrial. Given the delay of 16 years in custody, a retrial would serve no purpose, and the appellant was instead set at liberty.

p. 6

Legal principles established

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  • A murder trial which commenced before the 2007 repeal of the assessor provisions had to be concluded with the aid of assessors; discharge of assessors mid-trial renders the trial a nullity, and parties and the court could not dispense with them at will.
  • Repeal of a written law does not affect investigations, legal proceedings or remedies in respect of matters under the repealed law, which may be continued as if the repealing law had not been made.
  • A retrial will not be ordered where it is likely to occasion injustice, where it would merely fill gaps in the prosecution case, or where great delay has elapsed since arrest.
  • Article 50(2)(e) of the Constitution is a substantive safeguard requiring criminal trials to begin and conclude without unreasonable delay, not a mere pious aspiration.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Appellant set at liberty forthwith unless otherwise lawfully held
  4. 4.No retrial ordered

Authorities

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Legislation

  • Penal Codesections 203 and 204
  • Criminal Procedure Codesections 262 and 263
  • Criminal Procedure Codesection 306
  • Criminal Procedure Codesection 200 as read with section 201(2)
  • Criminal Procedure Codesection 298(1)
  • Constitution of Kenya, 2010Article 50(2)(e)
  • Former Constitution of Kenyasections 72(5) and 77
  • Interpretation and General Provisions Act, Chapter 2, Laws of Kenyasection 23(3)(b) and section 23(3)(e)
  • Statute Law (Miscellaneous Amendment) ActAct No. 7 of 2007
  • Canadian Charter of Rights and Freedomssection 11(b)
  • Magna Carta (1251)chapter 40

Cases cited (10)

  • Bernard Kinoti M'Arachi v R
    Criminal Appeal No. 114 of 2008
  • Bob Ayub "alias" Edward Gabriel Mbwana "alias" Robert Mandiga v R
    Criminal Appeal No. 106 of 2009
  • R v Morin
    (1992) S.C.R. 771
  • Jordan v R
    S.C.C. 27 of 2016
  • Charles Mwangi Muraya v R
    Criminal Appeal No. 97 of 2000
  • Romani Bin Mwakiponya
    (1937) 4 EACA 62
  • Muthemba s/o Ngombe v Reginum
    (1954) 21 EACA 234
  • Cherere Gikuli v Reginum
    (1954) 21 EACA 304
  • Peter Ngatia Ruga v R
    Criminal Appeal No. 42 of 2008
  • Muiruri v R
    (2003) KLR 552
On appeal from
High Court of Kenya at Mombasa
Criminal Case No. 16 of 2002
Jurisdiction invoked
First appellate/second appellate criminal jurisdiction over an appeal from a High Court murder conviction (Criminal Appeal No. 499 of 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Charo Karisa Salimu v Republic [2016] KECA 365 (KLR)", Case Analysis (2016). Criminal Appeal No. 499 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/365/eng@2016-07-29

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