REPUBLIC OF KENYA
Migot v Republic

Court of Appeal, at Kisumu  
December 3, 1991

Gachuhi, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 67 of 1991

(Appeal from a Judgment of the High Court of Kenya at Kisumu (Khamoni J)

dated 14/6/1991 in Criminal Appeal No 162 of 1990)

Criminal Practice and Procedure – retrial – whether an order for retrial prejudicial to the appellant – section 200 (4) Criminal Procedure Code.

The appellant, whose trial was commenced by one magistrate but concluded by another under section 200 of the Criminal Procedure Code, was convicted of handling stolen property and jailed for six years. He appealed to the High Court which found that the last trial magistrate had contravened section 200 of the Criminal Procedure Code by failing to explain to the accused the import of the section. The learned judge thus proceeded to allow the appeal, quashed the conviction, set aside the sentence and ordered the release of the appellant. The Court further ordered the retrial of the appellant under section 204 of the Criminal Procedure Code.

The appellant lodged a second appeal on grounds inter alia that a retrial would prejudice him and that it would enable the prosecution to call further evidence .

Held:

1. Subsection 4 of section 200 of the Criminal Procedure Code empowers the High Court to order a re-trial

2. The appellants fear that a retrial would give the prosecution an opportunity to fill gaps left during the previous trial by calling further evidence could be countered during the retrial.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 296 (2)

2. Criminal Procedure Code (cap 75) section 200(4)

REPUBLIC OF KENYA
Andhiro v Republic

Court of Appeal, at Kisumu  
December 2, 1991

Masime, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 80 of 1990

(Appeal from a sentence of the High Court of Kenya at Kisii (Patel J)

dated 8/11/89 in Criminal Case No 49 of 1989)

Criminal Practice and Procedure - plea of guilty - prosecution witholding cautionary statement containing exculpatory facts - whether proper.

Criminal Practice and Procedure - pauper brief - accused person facing murder charge not represented - whether proper.

The appellant, who was initially charged with the offence of murder, pleaded guilty to the lesser offence of manslaughter. He was convicted and sentenced to 12 years imprisonment.

Before his sentencing in the High Court, the appellant expressed his remorse and promised to rehabilitate himself and become a useful member of the society. The appellant did not have legal representation. In his cautionary statement the appellant had given which was not brought to the attention of the trial judge, the appellant had given reasons for killing the deceased. He claimed the deceased had abused him.

Held:

1. If the nature of the abuse had come to the attention of the judge then he would not have passed the sentence that he had imposed.

2. It is the practice of the Court that an accused facing a charge of murder be provided with free legal aid. In this case the appellant was not represented by an advocate and yet the judge proceeded to take a plea. That was not a practice to be encouragd and it can lead to an order for retrial.

Appeal allowed sentence reduced.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 205

Criminal Practice and Procedure – lapse of time – whether invalidates a charge. Criminal Law – false pretence – charge of procuring registration of land by false pretences - Penal Code (cap 63) section 320 - whether prosecution for the offence can be brought after lapse of a long time – section 219 Criminal Procedure Code.

Civil Practice and Procedure – arbitration – composition of arbitration panel - arbitration panel not permitting one of the panelists to sit in the arbitration - whether procedure proper. Arbitration – award – elders not signing the award – whether omission goes to the root of the awards - whether arbitration proceedings must strictly conform with the rules of procedure followed in courts of law.