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Court of AppealPartially AllowedCriminal Appeal No. 127 of 2013· [2017] KECA 491 (KLR)

F W N v Republic [2017] KECA 491 (KLR)

Court of Appeal of Kenya
16 June 2017
PKP. Kihara KariukiJMJ. MohammedSKS. ole Kantai
2,285 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a life sentence because magistrates took over a criminal trial without telling the accused he could demand witnesses be re-heard.

What this practically means

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Executive summary

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The appellant was convicted of defilement of an 11-year-old girl contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. His first appeal to the High Court (Achode, J.) was dismissed, prompting this second appeal. On appeal, counsel for the appellant abandoned the original grounds and pursued three issues: that the trial was a nullity for non-compliance with section 200 of the Criminal Procedure Code when successive magistrates took over; that the appellant was convicted under a repealed law; and that the evidence was contradictory and not re-evaluated by the High Court. The respondent's counsel conceded that section 200(3) was not complied with, that subsequent proceedings might be a nullity, and that the Penal Code provision relied on could not apply after the Sexual Offences Act came into force, but urged a retrial. The court, confined on second appeal to matters of law under section 361 of the Criminal Procedure Code, found that two succeeding magistrates took evidence without informing the appellant of his right under section 200(3) to demand that witnesses be re-summoned and re-heard. Since the provision is mandatory, the trial was declared a nullity under section 200(4). Applying the settled retrial principles in Fatehali Manji v Republic and related authorities, the court found there was evidence which might support a conviction and that the prosecution undertook to avail witnesses and proceed with dispatch. The appeal was allowed, the conviction quashed, the life sentence set aside, and a retrial ordered, with the appellant remanded in custody pending mention before the trial court.

Key legal issues

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01

Effect of non-compliance with section 200(3) of the Criminal Procedure Code

Holding

Non-compliance renders the subsequent proceedings a nullity

Reasoning

The trial began before Mrs. E. Mbugua who heard four witnesses. Two succeeding magistrates, E. Muriithi and T. Murigi, took further evidence without explaining to the appellant his rights under section 200(3) to demand that witnesses be re-summoned and re-heard. Because the provision is couched in mandatory terms, the failure rendered the subsequent proceedings a nullity, and under section 200(4) the trial was declared a nullity.

p. 3
02

Whether a retrial should be ordered

Holding

A retrial was warranted because evidence on record could support a conviction and the prosecution undertook to avail witnesses

Reasoning

Applying Fatehali Manji v Republic and Mwangi v Republic, the court found there was evidence on record which might support a conviction on proper consideration of admissible or potentially admissible evidence. The respondent assured the court witnesses would be availed and the retrial would proceed with dispatch, satisfying the interests-of-justice test despite the elapsed time.

p. 4
03

Scope of second appeal under section 361 of the Criminal Procedure Code

Holding

The Court of Appeal on a second appeal is confined to matters of law

Reasoning

The court restated that under section 361(1), a second appeal lies only on matters of law; findings of fact of the trial and first appellate courts must be accepted and not treated as holdings of law or mixed findings, unless it is apparent that no reasonable tribunal could have reached the conclusion.

p. 2

Legal principles established

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  • Section 200(3) of the Criminal Procedure Code is mandatory; a succeeding magistrate must inform the accused of the right to have witnesses re-summoned and re-heard, and failure to comply renders subsequent proceedings a nullity.
  • On a second appeal, the Court of Appeal considers only matters of law and will not interfere with findings of fact of the lower courts.
  • A retrial is ordered only where the original trial was illegal or defective, and only where the interests of justice require it and it is unlikely to cause injustice to the appellant.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed
  3. 3.The life sentence is set aside
  4. 4.Pursuant to section 200(4) of the Criminal Procedure Code, the appellant's trial is declared a nullity
  5. 5.The appellant is to be retried by a competent court
  6. 6.The appellant shall be remanded in custody pending mention of his case before the trial court
On appeal from
High Court of Kenya at Nairobi
H.CR. A. No. 661 of 2010
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "F W N v Republic [2017] KECA 491 (KLR)", Case Analysis (2017). Criminal Appeal No. 127 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/491/eng@2017-06-16

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