Reuben Shangi Akelo v Republic [2017] KECA 364 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that accused persons who delay or walk out of their own trials cannot later claim they were denied a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 200 of the Criminal Procedure Code on succession of magistrates
The appellant waived his right under section 200(3) by electing not to recall witnesses and could not resile from that election
The court noted that after Meoli Ag CM explained section 200 to the appellant on 10th May, 2007, he replied he would not recall any witness. Mrs Wamae's ruling of 25th February, 2008 found this amounted to a waiver and that the court had no jurisdiction to undo its own orders. The court endorsed that finding and held the contention of non-compliance without merit.
Non-compliance with section 306(1) of the Criminal Procedure Code before requiring the defence
The failure was regrettable but cured under section 382 as no miscarriage of justice was occasioned and the objection was not raised at trial
The court found the trial court directed the appellant to make his defence without complying with section 306(1). However, the appellant never objected at the time, and having made every effort to derail the trial and having walked out when called upon to defend himself, no failure of justice was occasioned. Section 382 required the objection to have been raised earlier to succeed.
Fair trial where the appellant walked out rather than give his defence
The appellant was accorded the opportunity to defend himself; his own conduct terminated the hearing of his defence
The trial court had granted the appellant the opportunity to defend himself after numerous adjournments and dilatory applications, including High Court proceedings. The magistrate properly concluded that the appellant's walkout amounted to opting not to give his defence. The first appellate court's finding that the constitutional rights were not violated was upheld.
Reliability of identification and recognition evidence on a second appeal
The identification and recognition evidence was reliable and sufficient to support conviction
The robbery was committed in broad daylight at around 1-2 pm. PW2 identified the appellant at an identification parade conducted by PW4, and PW5, a Mbotela Estate resident of 42 years who had known the appellant since birth, recognized him at the scene. Concurrent findings of the two courts below on this evidence could not be disturbed on second appeal.
Legal principles established
#- On a second appeal, the Court of Appeal will not interfere with the concurrent findings of fact of the two courts below unless they are shown not to have been based on evidence
- Where an accused waives the right under section 200(3) of the Criminal Procedure Code to have witnesses recalled, that right is not available to be re-invoked at a later stage
- An accused who walks out of the courtroom when called upon to defend himself cannot later claim he was denied a fair trial
- An error, omission or irregularity in trial proceedings, including non-compliance with section 306(1) of the Criminal Procedure Code, does not warrant reversal unless it occasioned a failure of justice, and regard is had to whether the objection could and should have been raised earlier
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence of the courts below stand
- On appeal from
- High Court at Nairobi
- HC.CR NO. 410 OF 2008
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Shangi Akelo v Republic [2017] KECA 364 (KLR)", Case Analysis (2017). Criminal Appeal No. 54 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/364/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.