kehc-1984-00003

High Court of Kenya

27 July 1984

FAF.E Abdullah JAJ.A Aluoch

652 words in judgment

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The bottom line

Kenya's High Court threw out a criminal conviction because a new magistrate never told the accused of his right to have witnesses re-heard.

What this practically means

Executive summary

The appellant was convicted by a Senior Resident Magistrate on three counts (stealing a cheque leaf, forging a signature on it, and uttering it, contrary to sections 275, 349 and 353 of the Penal Code) but was acquitted of obtaining by false pretences under section 313. The prosecution case was that the appellant presented a stolen, forged cheque for Kshs 1,200 to one Irungu Kahiga as payment for meals. The first trial magistrate heard all the prosecution evidence and the appellant's unsworn statement but was appointed Solicitor General before the defence closed. A second magistrate took over under section 200 of the Criminal Procedure Code and, having asked the appellant only whether he objected to the handover, heard the defence witness, convicted and sentenced the appellant. On appeal, the High Court held that section 200(3) imposes a duty on the succeeding magistrate to inform the accused of the right to demand that witnesses be resummoned and reheard - a duty not discharged here, though credibility of prosecution witnesses was in issue. Applying Raphael v Republic [1969] EA 544, the court found the second magistrate lacked jurisdiction and the trial was a nullity. It allowed the appeal, quashed the convictions, set aside the sentences, and, given that the appellant had served about nine months, declined to order a retrial, directing his release unless otherwise lawfully held.

Key legal issues

Whether the duty to inform the accused of the right to have witnesses resummoned and reheard under section 200(3) is jurisdictional

Holding

Yes; the succeeding magistrate must inform the accused of that right before continuing the case, and failure to do so deprives him of jurisdiction, rendering the trial a nullity

Reasoning

The court distinguished Raphael v Republic, where the succeeding magistrate told the accused of his right to recall witnesses, from the present case where the accused was only asked if he objected to the magistrate continuing. Since credibility of prosecution witnesses was at issue, denial of the section 200(3) right was fatal.

p. 2

Whether a retrial should be ordered after a nullified trial

Holding

No retrial ordered; the appellant had served about 9 months and should not face the peril of a second trial

Reasoning

Although declaring a trial a nullity ordinarily points to a retrial, the court's discretion weighed the small amount involved (Kshs 1200) against the sentence already served, and concluded the appellant should be released.

p. 3

Legal principles established

A succeeding magistrate under section 200 of the Criminal Procedure Code must inform the accused of the right under section 200(3) to demand that witnesses be resummoned and reheard; failure to do so is fatal and renders the trial a nullity

Court orders

1.Appeal allowed
2.Conviction on the counts of theft, forgery and uttering quashed
3.Sentences set aside
4.No retrial ordered; the trial having been declared a nullity the appellant may be released forthwith unless otherwise lawfully held

On appeal from: Senior Resident Magistrate's Court; Not stated
Jurisdiction invoked: Criminal appeal against conviction and sentence under the Criminal Procedure Code (cap 75); section 200(3) of the Criminal Procedure Code

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Cite this brief

Caselaw, "kehc-1984-00003", Case Analysis (1984). . Source:

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