1.The two accused persons named herein were jointly charged with Frederick Omondi Oduor with the offence of murder contrary to section 203 as read with section 204 of the penal code in that on December 26, 2017 at Emarti Location within Mashuru Sub-County within Kajiado County, jointly with others not before the court, murdered Jackson Timayo Siranke.
2.They pleaded not guilty and the trial commenced. In the course of proceedings, the state terminated charges against Frederick Omondi Oduor and treated him as a witness. He testified as PW7.
3.This matter has been handled by three judges. Hon Justice Nyakundi commenced the trial and took evidence of majority of the witnesses. In the course of proceedings before Justice Nyakundi, a trial within trial was conducted. This ruling relates to that trial within trial.
4.I took over the conduct of these proceedings on October 26, 2021. CIP Samuel Otieno Onyango, was the first witness to testify before me. At the conclusion of his evidence, I was alerted by Mr Ochieng, learned counsel for the 1st accused that ruling in respect to trial within trial had not been given. I took time to read the entire record in the court file to confirm the reason behind that omission.
5.I have noted that the court (Nyakundi J) started trial within trial on February 4, 2019 when PW9, CPL Benjamin Samoei was testifying. The learned judge took evidence of this witness but as PW9 instead of PW1 in trial within trial. I have noted that there was no basis laid for conducting trial within trial. For instance, the police had not attempted to produce a statement to elicit an objection from the defence team. This would have informed the court to make a ruling that a trial within trial ought to be conducted to determine whether the statement in issue was taken according to the law.
6.Nonetheless, the court took evidence of PW9, then PW2, Peter Muvunyu, brother to 1st accused. The record shows that the court took evidence of Dr Cheson Kevin, the pathologist as PW1. This witness was testifying on the cause of death, the issue that was not relevant to the trial within trial. It is not clear why he testified as PW1 in the middle of a trial within trial. The numbering of the witnesses also has issues in that the numbers are mixed up.
7.After the doctor testified, there is PW3, CIP Mercy Riungu who recorded the statement of the 1st accused. I have seen a statement marked PEXGH 6 but I did not see any record showing that PW3 produced that statement and if it was produced, it would be prejudicial to the 1st accused because the court had not taken evidence of the 1st accused to enable it make a finding as to whether the statement was voluntarily made and therefore admissible in evidence.
8.I have read the entire file, I did not come across proceedings from the court (Nyakundi J) showing that he took evidence of the 1st accused or that he made a determination as to whether the statement was voluntarily recorded and therefore admissible in evidence.
10.It is clear to me that procedure was not followed in this matter. Firstly, there was no basis laid for the trial within trial. The only way a basis is laid to order a trial within trial is when the police witness introduces in evidence an extra judicial statement eliciting an objection from the defence as to the voluntariness of such a statement. After this has been done, then the court makes a ruling to conduct a trial within a trial. The proceedings in the trial within trial lead to a determination by the court that either the statement was voluntarily given or not. If the statement was voluntarily made, then the same can be marked or produced in evidence.
11.I am therefore persuaded that the accused persons were not accorded fair trial in trial within trial proceedings. The 1st accused person has been prejudiced in the manner the trial within trial was conducted and the production of the statement before allowing the 1st accused to testify as to whether he gave that statement voluntarily or not and before the trial court (Nyakundi J) made a determination on the voluntariness or otherwise of that statement. In my considered view, this is a mistrial.
12.Black’s Law Dictionary 9th Edition defines a mistrial as “A trial that the judge brings to an end, without a determination on the merits because of a procedural error or serious misconduct occurring during the proceedings.”
13.For ends of justice to be met in this matter, I declare the trial so far as a mistrial and order a retrial. Given that Kajiado has only one judge, it is proper that this matter be transferred to Nairobi Criminal Division for mention before the presiding judge of that division to assign it to another judge for retrial. To that end, the deputy registrar of this court is directed to forward this file to the presiding judge, Milimani Criminal Division as soon as possible.
14.Orders shall issue accordingly.