[2020] KEHC 4682 (KLR)
The court found that the trial magistrate, having previously convicted the appellant in similar defilement cases, should have disqualified himself from presiding over the current trial to ensure impartiality as required by Article 50(1) of the Constitution. The failure to do so constituted a breach of the...
Source-derived case information.
- Citation
- [2020] KEHC 4682 (KLR)
- Parties
- Appellant: Alfred Juma Shem; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 62 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed; conviction and sentence quashed; appellant to be set free unless otherwise lawfully held.
- Judges
- SN Riechi
- Legal Topics
- Defilement Offence, Judicial Impartiality, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alfred Juma Shem
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate's prior involvement in convicting the appellant in similar cases compromised impartiality and the right to a fair trial.
- 2 Whether the conviction and sentence for defilement were sustainable in light of alleged procedural and constitutional breaches.
- 3 Whether a re-trial should be ordered after quashing the conviction and sentence.
Ratio Decidendi
The court found that the trial magistrate, having previously convicted the appellant in similar defilement cases, should have disqualified himself from presiding over the current trial to ensure impartiality as required by Article 50(1) of the Constitution. The failure to do so constituted a breach of the appellant's right to a fair and impartial trial, rendering the proceedings fundamentally defective. Consequently, the conviction and sentence were quashed. The court further considered whether to order a re-trial but declined, noting that the appellant had already served approximately ten years in custody, and that the interests of justice would not be served by a re-trial.
Court Disposition
Appeal allowed; conviction and sentence quashed; appellant to be set free unless otherwise lawfully held.
Orders
- The conviction and sentence of life imprisonment against the appellant are quashed.
- The appellant is to be set free unless otherwise held on other lawful warrants.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. 62 OF 2011
ALFRED JUMA SHEM..................APPELLANT
VERSUS
REPUBLIC...................................RESPONDENT
(Being an appeal from the judgement (conviction and sentence) ofHon. R.O.
Oigara,SRM, deliveredon 18/11/2010 in the Senior ResidentMagistrate’s
Court at Kimilili, Criminal Case No. 594 of 2008, R v.Alfred Juma Shem)
JUDGEMENT
[Pursuant to section 201 (2) as read with section 200(1) (a) CPC]
1. The appellant has appealed against his conviction and sentence of life imprisonment in respect of the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006.
2. Ms. Koech, counsel for the respondent has supported both the conviction and sentence.
3. In this court, the appellant has raised four grounds of appeal in his petition of appeal.
4. In ground 1 the appellant has faulted the trial court for convicting him on fabricated evidence, which fell short of the standard of proof beyond reasonable doubt. In ground 2 the appellant has faulted the trial court for failing to consider his defence. In ground 3 the appellant has faulted the trial court for failing to call the school teacher as a witness. In ground 4 the appellant has faulted the trial court for failing to allow him to mitigate.
5. In his oral submissions in this court, the appellant has submitted that he had applied to the learned magistrate to recuse himself; since the same learned magistrate had convicted him in two previous cases of defilement and sentenced him to life imprisonment. He further submitted that one such case was criminal case No. 595 of 2009 in Kimilili Senior Resident Magistrate’s Court. In this regard, the prosecutor during the pre-sentencing hearing stated that the appellant had one previous conviction for defilement. He was convicted for that defilement on 4/5/10.
6. It is clear therefore that the learned magistrate should not have tried the appellant because he had previously convicted him of a similar defilement offence. In view of this the learned magistrate should have disqualified himself from trying the appellant. He was not impartial as required by article 50 (1) of the 2010 Constitution of Kenya; which reads as follows:
7. “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
8. In the circumstances, I find that the appellant did not have a fair and impartial trial. This breach of the appellant’s constitutionally guaranteed right was breached. It therefore follows that the trial of the appellant was fundamentally defective.
9. In the premises, the appellant’s appeal succeeds with the result that his conviction and sentence are hereby quashed.
10. In the light of the foregoing, it is moot or academic to consider the grounds of appeal.
11. The only issue left for me to consider is whether I should order the re-trial of the appellant pursuant to this court’s powers in terms of section 354 (3) (a) (i) of the Criminal Procedure Code (Cap 75) Laws of Kenya. In doing so, I have taken into account that the appellant has been in prison custody for about ten years; following his conviction and sentence on 18th November 2010.
12. Since the appellant has been in custody for about ten years, I find that it is in the interest of justice not to order for the re-trial of the appellant.
13. The appellant is hereby ordered to be set free unless otherwise held on other lawful warrants.
Judgment signed, dated at Narok this 19th day December 2019.
J. M. Bwonwong’a.
Judge
19/12/2019.
AND
Judgment signed, dated and delivered court open at Bungoma this 13th day of February, 2020.
S. N. Riechi
Judge
13/2/2020