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|Case Number:||Criminal Appeal 45 of 1994|
|Parties:||John Kipkurui Arap Lelei v Republic|
|Date Delivered:||20 Feb 1995|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Akilano Molade Akiwumi, Amrittal Bhagwanji Shah, Philip Kiptoo Tunoi|
|Citation:||John Kipkurui Arap Lelei v Republic  eKLR|
|Case History:||(Appeal from a conviction and sentence of the High Court of Kenya at Nakuru (Mr. Justice R.N. Nambuye) dated 9th December, 1993 IN H.C.CR.C. NO. 18 OF 1992|
|Parties Profile:||Individual v Government|
|History Docket No:||18 of 1992|
|History Judges:||Roselyn Naliaka Nambuye|
Lelei v Republic
Court of Appeal, at Nakuru
February 28, 1995
Akiwumi, Tunoi & Shah, JJ A
Criminal Appeal No 45 of 1994
Criminal practice and procedure- assessors- trial commencing and concluding in absence of all the assessors-no good cause shown for assessor’s absence-whether absence fatal to the trial-section 322(1) Criminal Procedure Code
Criminal practice and procedure- assessors- summing up-judge asking assessors to retire and consider their opinion without summing up to them-assessors returning a verdict of guilty-whether omission to sum up fatal to the trial- Section 298 Criminal Procedure Code
The appellant who was convicted of murder appealed against his conviction on two main grounds namely that the trial Judge at the conclusion of the trial asked the assessors to retreat for their opinion without summing up to them. Second, during the trial not all the assessors attended all the trial sessions. When the trial commenced three assessors namely Osongo, Ongelo and Nyanjage were duly selected however at the next hearing, only Osongo and Nyanjage attended the trial. No sufficient cause was given for the absence of Ongelo. Evidence was concluded at this hearing and the trial adjourned for submissions from counsel. On the day of submission all the assessors attended and the learned trial Judge at the conclusion of submissions and without summing up to the assessors, asked them to retire for their opinion to which they returned a verdict of guilty.
Section 298 (1) of Criminal Procedure Code provides that in the course of a trial with assessors and before the opinion of the assessors are obtained, the trial shall proceed with the aid of the other assessors if one of the three is “from any sufficient cause,” prevented from attending throughout the trial or absents himself. Section 322(1) of the Criminal Procedure Code further provides that when in a case tried with assessors the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence and shall then require each assessor to relate his opinion orally, and shall read that opinion.
|Case Outcome:||Appeal allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(CORAM:AKIWUMI, TUNOI & SHAH, JJ A
CRIMINAL APPEAL NO 45 OF 1994
JOHN KIPKURUI ARAP LELEI…………..APPELLANT
(Appeal from a conviction and sentence of the High Court of Kenya at Nakuru (Mr. Justice R.N. Nambuye) dated 9th December, 1993)
H.C.CR.C. NO. 18 OF 1992
There are two aspects of the trial in this serious matter that render the trial defective and it is not surprising that the learned Counsel for the respondent has conceded the appeal.
The first matter is that after the conclusion of submissions by Counsel at the trial, the two assessors who were present that day retired to deliberate on their verdict, without the learned judge having summed up to them. They returned about an hour later and expressed their opinion that the appellant was guilty as charged of the offence of murder. The learned judge reserved judgment which was delivered a month and a half later and in which the appellant was found guilty of murder. Section 322(1) of the Criminal Procedure Code provides as follows:-
“When, in a case tried with assessors the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence and shall then require each assessor to relate his opinion orally, and shall read that opinion.”
The words of the Section do not appear to impose a mandatory duty on the learned Judge to sum up to the assessors. However, in view of the fact that the judge shall then require the assessors to give their opinions, implies that the summing should have taken place before then. In any case, good sense dictates, that laymen who act as assessors require the guidance of the judge on legal issues particularly where the charge before the assessors is one of murder. The failure of the learned Judge to sum up to the assessors in our view, makes the proceedings fatally defective.
The second matter arose out of the irregular attendance of the assessors at the trial. Section 298 (1) of Criminal Procedure Code provides that in the course of a trial with assessors and before the opinion of the assessors are obtained, the trial shall proceed with the aid of the other assessors if one of the three is “from any sufficient cause,” prevented from attending throughout the trial or absents himself. At the beginning of the trial in question three assessors Osongo, Ongelo and Nyanjage were duly selected. At the next hearing, only Osongo and Nyanjage attended the trial. No sufficient cause was given for the absence of Ongelo. At this hearing, the evidence was concluded and the trial adjourned for submissions from counsel to be heard on 27th October, 1993. On this day, Osongo attended the trial. So also Ongelo who had missed the previous hearing when the hearing of the evidence was concluded. Nyanjage did not attend the trial and no sufficient cause was given for this. What next occurred was that, without the judge summing up to Osongo who had attended all sittings of the Court and Nyanjage who had attended only the first sitting of the court, these two assessors were ordered to give their opinion which as already observed they did, to the effect that the appellant was guilty of murder. It is impossible to take the opinion of Nyanjage seriously, neither can it be said that the trial had been carried out with the aid of assessors as required by Sections 262, 263 and 298 (1) of the Criminal Procedure Code. For those reasons also, the trial was fatally defective.
The appeal will therefore be allowed, the conviction quashed, and sentence set aside. We are, however, of the view, that having regard to the defects that we have identified and which culminated in there not having being a satisfactory trial of the appellant, there shall be a re-trial of the appellant before a court of competent jurisdiction as expeditiously as possible. In the meantime, the appellant shall be treated as a remand prisoner.
Dated and delivered at Nakuru this 28th day of February, 1995
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.