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Court of AppealPartially AllowedCriminal Appeal No. 6 of 2018· [2020] KECA 752 (KLR)

Joseph Munyao Makau v Republic [2020] KECA 752 (KLR)

Court of Appeal
24 April 2020
1,222 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of robbery because prosecutors never gave him witness statements, and refused to order a re-trial after twelve years.

What this practically means

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Executive summary

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The appellant, Joseph Munyao Makau, was convicted of robbery with violence contrary to Section 296(2) of the Penal Code by the Magistrates' Court at Kwale and sentenced to death. His first appeal was dismissed by the High Court at Mombasa (Ojwang and Odero, JJ.) in September 2010. In this second appeal, confined to points of law under Section 361 of the Criminal Procedure Code, the appellant's sole complaint, advanced through counsel Miss Aoko Otieno, was that his right to a fair trial was violated when the trial court compelled him to proceed without being supplied with witness statements. Senior Prosecution Counsel Mr. Ketoo conceded the appeal on that ground. The Court of Appeal (Musinga, Gatembu Kairu and Murgor, JJ.A.) held that the duty of disclosure is a continuing one throughout the trial, following Thomas Patrick Gilbert Cholmondeley and R v Ward. The record showed the appellant had objected that he lacked witness statements after the first prosecution witness testified, yet the trial court ordered the case to proceed, wrongly treating his right as waived. The Court found the fair-trial violation established. Although a re-trial would ordinarily have been the remedy, the Court declined to order one given the approximately twelve years elapsed since the offence, the difficulty of locating witnesses, and the appellant's continuous custody. The Court allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's release unless otherwise lawfully held. The judgment binds subordinate courts on the continuing nature of the prosecution's disclosure obligation.

Key legal issues

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01

Scope of second appeal under Section 361 Criminal Procedure Code

Holding

A second appellate court considers only points of law and will not disturb concurrent findings of fact unless based on no evidence.

Reasoning

The Court invoked its settled second-appeal jurisdiction: it is confined to questions of law and cannot revisit concurrent findings of fact made by the trial court and first appellate court unless those findings were based on no evidence. The sole point of law identified was whether the failure to supply witness statements violated the fair-trial guarantee.

p. 2
02

Continuing duty of disclosure and fair trial

Holding

The prosecution must supply witness statements and relevant material in advance of and throughout the trial; compelling an unrepresented accused to proceed without them violates the right to a fair trial.

Reasoning

Relying on Cholmondeley and R v Ward, the Court affirmed that the duty of disclosure persists throughout the trial. The record showed the trial court ordered statements supplied, yet when the appellant objected after the first witness testified, the court compelled the trial to continue, wrongly treating his right as waived. This violated fair-trial guarantees, a finding conceded by the respondent.

p. 3
03

Remedy for fair-trial violation - re-trial vs acquittal

Holding

Although a re-trial is the ordinary remedy for a fair-trial violation, the court may quash the conviction outright where the passage of time, difficulty in locating witnesses, and prolonged custody make a re-trial unjust.

Reasoning

The Court held that it would ordinarily have ordered a re-trial after finding a fair-trial violation. However, weighing the approximately twelve years elapsed since the offence, the practical difficulty of assembling witnesses, and that the appellant had been in custody throughout, it declined a re-trial and instead quashed the conviction and set aside the sentence.

p. 3

Legal principles established

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  • The prosecution's duty to disclose witness statements and relevant material to the accused is a continuing one throughout the trial, and an accused cannot be compelled to proceed with trial without disclosure; doing so violates the right to a fair trial.

Court orders

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  1. 1.Conviction quashed
  2. 2.Sentence set aside
  3. 3.Appellant to be set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 361
  • Constitution of Kenya (pre-2010)Section 77

Cases cited (3)

  • Kaingo vs. R
    (1982) KLR 213
  • Reuben Karari C/O Karanja -vs- R
    (1956) 17 EACA 146
  • Thomas Patrick Gilbert Cholmondeley vs. Republic
    [2008] eKLR
On appeal from
High Court of Kenya at Mombasa
H.C.CR.APP. No. 121 of 2009
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on points of law)

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, "Joseph Munyao Makau v Republic [2020] KECA 752 (KLR)", Case Analysis (2020). Criminal Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/752/eng@2020-04-24

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