Cheruiyot & 3 others v Republic (Criminal Appeal 80 of 2018) [2026] KECA 725 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated the acquittal of four men, ruling that retrials can only be ordered in special circumstances and never where they cause injustice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge applied the correct principles in ordering a retrial
Key legal issues
#Whether the High Court correctly ordered a retrial under section 348A of the Criminal Procedure Code
The learned judge erred: he gave no reasons for ordering a retrial, applied no retrial principles, and a retrial was not the appropriate remedy; the appeal was allowed and the acquittal reinstated.
The Court, as a second appellate court confined to matters of law under section 361 of the Criminal Procedure Code, found the judge ordered a retrial without a single reason demonstrating the magistrate's acquittal was wrong. A retrial under section 348A lies only in special circumstances and where no injustice results. Here the complainant had died, witnesses' memories had eroded after 12 years, and the appellants would face a fourth trial before a different magistrate, offending Article 50 fair-hearing guarantees. The pending civil suit could proceed unaffected.
Whether the retrial order occasioned injustice to the appellants
Yes. The death of the complainant, the age of the case, and a fourth trial before a different magistrate would cause injustice and fall short of a fair hearing under Article 50.
The complainant, the central figure in the case, had passed away, depriving the appellants of the chance to cross-examine her. Witnesses' recollections of events from 2013 would have eroded. The matter had already been heard de novo by three different magistrates, and a retrial would mean a fourth hearing, amounting to an injustice inconsistent with Article 50 of the Constitution.
Legal principles established
#- An acquittal under section 210 of the Criminal Procedure Code, following a finding that the prosecution failed to establish a prima facie case, should not be disturbed on appeal without reasons demonstrating the trial court was wrong; and an order for retrial is available only in special circumstances where no injustice will be occasioned to the accused.
- Where a first appellate court finds a prima facie case was established against accused persons acquitted under section 210, the appropriate order is that they be placed on their defence, not a retrial.
Court orders
#- 1.Set aside the decision of the learned judge delivered on 29th November 2018
- 2.Reinstate the findings of the trial court delivered on 22nd July 2016, acquitting the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- HCCRA No. 11 of 2016
- Jurisdiction invoked
- Second appellate jurisdiction under section 361 of the Criminal Procedure Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we set aside the decision of the learned judge delivered on 29th November 2018 and reinstate the findings of the trial court delivered on 22nd July 2016, acquitting the appellants. It is so ordered.
It is trite that in ordering a retrial, the learned Judge ought to have considered the fact that an acquittal alone is not a suficient ground for ordering a retrial. This is a power that should be exercised sparingly and in special cases.
If indeed the matter is retried as is, there will be an injustice on the part of the appellants who will not have the opportunity to cross examine her evidence.
We do not think that an order for retrial is available under the provision.
Issues in the judgment
#The judgment body states the appeal was heard on 10th February 2026, but the delivery clause is dated 10th April 2026 - a two-month gap between hearing and delivery, not itself contradictory but worth noting for dating purposes.
The coram appears only as a signature block without formal bench listing; the panel is inferred from the three signatories.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot & 3 others v Republic (Criminal Appeal 80 of 2018) [2026] KECA 725 (KLR)", Case Analysis (2026). Criminal Appeal (from Kericho HCCRA No. 11 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/725/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.