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Court of AppealDismissedCriminal Appeal No. 5 of 2015

Peter Kamonjo Njoroge v Republic [2019] KECA 984 (KLR)

Court of Appeal of Kenya
8 February 2019
2,675 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 ruled that a disruptive accused person can lawfully be tried in their absence and lost his appeal against a robbery conviction.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Chief Magistrate's Court at Kiambu and sentenced to death. His first appeal to the High Court (Kimaru & Nyamweya, JJ.) was dismissed, conviction and sentence being upheld. On second appeal, the Court of Appeal (Visram, W. Karanja and Koome, JJA) identified two issues: whether the appellant's exclusion from parts of his trial contravened section 77(2)(f) of the retired Constitution, and whether the first appellate court failed to re-evaluate the evidence, occasioning a miscarriage of justice. The Court held that the trial magistrate acted lawfully in proceeding in the appellant's absence: his persistent disruptive, rude and unruly conduct rendered continuation of the proceedings in his presence impracticable, and he had refused to participate in his defence. Relying on Daniel Karuma alias Njaluo v Republic, the Court held that an accused cannot benefit from his own misconduct, and that the opportunity to be heard had been fully accorded, including a trial de novo after the first magistrate disqualified himself. On the second issue, the Court found that both courts below properly analysed the evidence and made unchallenged concurrent findings of fact, which, on a second appeal confined to matters of law under section 361(1)(a) of the Criminal Procedure Code, could not be disturbed. The appeal was dismissed and both conviction and sentence were upheld. The judgment binds lower courts on the principle that a deliberately disruptive accused forfeits the right to be present at trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the exclusion of the appellant from the trial was a contravention of the right to fair trial under section 77(2)(f) of the previous Constitution
  2. 2.Whether the learned judges of the first appellate Court failed to re-evaluate the evidence and as a result occasioned a miscarriage of justice

Key legal issues

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01

Whether the exclusion of the appellant from his trial violated his right to a fair trial under section 77(2)(f) of the retired Constitution

Holding

The exclusion was lawful and did not violate the right to a fair trial because the appellant's persistent disruptive and unruly conduct rendered continuation of the proceedings in his presence impracticable.

Reasoning

The trial shall not take place in an accused's absence except with his consent, unless he so conducts himself as to render the continuance of proceedings in his presence impracticable and the court has ordered his removal. The record showed repeated warnings, recorded unruly conduct, and a refusal to participate after being placed on his defence. The magistrate gave the appellant every opportunity, including a trial de novo before a fresh magistrate, and was entitled to proceed in his absence.

p. 3
02

Whether the first appellate court's failure to analyse the exclusion issue in detail occasioned a miscarriage of justice

Holding

No miscarriage of justice occurred; the Court of Appeal itself examined the record and found both courts below properly analysed the evidence and made proper concurrent findings.

Reasoning

Although the first appellate court did not examine the exclusion issue in detail (it had not been properly raised in the memorandum of appeal before it), this Court considered the matter itself. Even without the appellant's defence, the evidence supported conviction; concurrent findings of fact stood unchallenged on a second appeal confined to law.

p. 3

Legal principles established

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  • An accused person whose conduct renders the continuation of proceedings in his presence impracticable may be removed and tried in his absence under section 77(2)(f) of the retired Constitution, and cannot later complain of exclusion caused by his own misconduct.
  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Both the conviction and the sentence of death as imposed by the trial court and upheld by the High Court are upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Nairobi
H.C. CR. A No. 557 of 2009
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)

Relief refused

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Order for retrial sought by the appellant

The appellant's exclusion from trial was justified by his own disruptive conduct; he cannot benefit from his own misconduct

p. 3

Interference with conviction and sentence

No appeal against sentence; concurrent findings of fact of the two courts below were not challenged

p. 3

Costs

No costs order was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

If a party deliberately and adamantly refuses to take such opportunity he cannot thereafter be heard to complain that he was not heard. Furthermore, the appellant cannot seek to benefit from his own misconduct.
p. 3Waiver of the right to be present at trial by misconduct
The Appellant’s right to be present during the trial was dependent on his conducting himself in a manner consistent with the sobriety of the trial.
p. 3Conditional nature of the accused's right to be present (quoting Daniel Karuma alias Njaluo v Republic)
we find the appellant’s right to fair trial under Section 77 (2) of the retired Constitution was not violated as the appellant was properly excluded from the proceedings due to his conduct.
p. 3Fair trial under section 77(2) retired Constitution
The appeal is totally devoid of merit and is hereby dismissed. There being no appeal against sentence or invitation to this Court to interfere with the same, we uphold both conviction and sentence.
p. 3Final orders - dismissal of appeal and upholding of conviction and sentence

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, "Peter Kamonjo Njoroge v Republic [2019] KECA 984 (KLR)", Case Analysis (2019). Criminal Appeal No. 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/984/eng@2019-02-08

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