Muiruri v Republic

Court of Appeal, at Mombasa August 8, 2003

Kwach, Githinji & Waki JJ A

Criminal Appeal No 84 of 2003

(Appeal from a conviction and sentence of the High Court

at Mombasa, Hayanga J, dated 23rd October 2001 in

High Court Criminal Case No 1 of 1990)

Criminal Practice and Procedure – assessors – where legal requirement for number of assessors not met–– where assessors appear alternately.

Criminal Practice and Procedure – retrial - when a retrial may be ordered - where accused in custody for a long time - whether retrial proper.

The trial record in this case indicated that during the trial less than 3 assessors appeared during the trial.

The trial record revealed that though three assessors had been selected, all three were present and participated in only two sessions. The records further revealed that the assessors appeared alternately and as they desired.

The state counsel applied for a retrial while the appellant through his advocate opposed the order for retrial and called for an acquittal citing the long period elapsed between arrest and the hearing of this appeal i.e. 15 years.

Held:

1. Unless valid and sufficient reasons are advanced and a considered ruling made on record for proceeding with a trial before the High Court with the assistance of two assessors, there must be three assessors as provided by the law.

2. To compound the irregularity, the order appeared to have been abandoned or forgotten since the assessors thereafter appeared alternatively as and when they desired.

3. Generally whether a retrial should be ordered or not must depend on the circumstances of the case.

4. It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant, whether the mistakes leading to the quashing of the conviction were entirely the prosecution’s making or the court’s.

5. By the time the trial commenced effluxion of time had taken its toll and several material witnesses had died. It would be an act of futility for the court to order a retrial after a period of 15 years.

Trial a nullity, conviction quashed, retrial refused.

Cases

Manyala, Zedekiah Ojuondo v Republic Criminal Appeal No 57 of 1980

Statutes

Criminal Procedure Code (cap 75) sections 262, 263, 298

Advocates

Mrs Mwangi for the Respondent.

Mr Kitui for the Appellant.

Crime - robbery with violence - appellant convicted and sentenced to death - first appeal dismissed - second appeal - duty of the Court of Appeal on a second appeal - where there are concurrent findings of fact by the two courts below it. Evidence - sufficiency of identification evidence - admission of a medical examination report in evidence -Evidence Act section 77 - form completed long after it was issued and signed by an unidentified officer - whether such document issued "under the hand of a medical practitioner" as required by law.