[2009] KEHC 2972 (KLR)
The court found that the failure by successive magistrates to explain the provisions of Section 200 of the Criminal Procedure Code to the appellants amounted to a miscarriage of justice, rendering the trial a nullity. The court further held that a retrial would be futile and prejudicial, as the key witnesses,...
Source-derived case information.
- Citation
- [2009] KEHC 2972 (KLR)
- Parties
- Appellant: Aloisio Njeru Kaimeti; Appellant: Aled Njue Kaimeti; Appellant: Moses Nyaga Kaimeti; Appellant: Ireri Kaimeti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 187 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- J Karanja
- Legal Topics
- Burglary and Stealing, Section 200 Cpc, Miscarriage of Justice, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aloisio Njeru Kaimeti
Appellant
Aled Njue Kaimeti
Appellant
Moses Nyaga Kaimeti
Appellant
Ireri Kaimeti
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether failure to explain the provisions of Section 200 of the Criminal Procedure Code amounted to a miscarriage of justice.
- 2 Whether a retrial should be ordered where witnesses are unavailable and appellants have served a substantial part of their sentence.
Ratio Decidendi
The court found that the failure by successive magistrates to explain the provisions of Section 200 of the Criminal Procedure Code to the appellants amounted to a miscarriage of justice, rendering the trial a nullity. The court further held that a retrial would be futile and prejudicial, as the key witnesses, including the complainant, were unavailable to testify, and the appellants had already served a significant portion of their sentences. In the interests of justice, the court allowed the appeal in its entirety and ordered the immediate release of the appellants unless otherwise lawfully held.
Court Disposition
appeal allowed
Orders
- The appeal is allowed in its entirety.
- The appellants shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Criminal Appeal 187 of 2007
ALOISIO NJERU KAIMETI……………………………..APPELLANT
VERSUS
REPUBLIC ………………………………………………RESPONDENT
AND
CRIMINAL APPEAL NO. 188 OF 2007
ALED NJUE KAIMETI…………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
AND
CRIMINAL APPEAL NO. 189 OF 2007
MOSES NYAGA KAIMETI………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
AND
CRIMINAL APPEAL NO.190 OF 2007
IRERI KAIMETI……………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
(CONSOLIDATED)
JUDGMENT
The four appellants are brothers. They were all jointly charged with Burglary and Stealing contrary to Section 304 (2) and 279 (b) of the Penal Code. They denied the charge and the matter went to full hearing with the prosecution calling a total of four witnesses. They were found guilty and convicted and each sentenced to four years imprisonment.
Before the prosecution case was closed the matter was handled by four magistrates. In the course of the taking over by one magistrate from the other, some forgot to explain the provisions of Section 200 C.P.C. This amounted to a miscarriage of justice and on that ground, the learned counsel for the state conceded this appeal. I do not therefore need to go into the details of the evidence adduced. He nonetheless requested for a retrial. I have since gone through the proceedings of the trial court. I have noted that on 8/1/2007 when the matter was supposed to start denovo, the prosecutor informed the court that the complainant was not available to be recalled. The prosecutor is actually on record as having said that it was not possible for the other witnesses to be recalled. This being the case, the futility of ordering a retrial is evident. The witnesses will not be available to testify. The availability of witnesses is one of the key considerations before the court can order a retrial in a case. If the witnesses cannot be available, then a retrial would not be tenable.
Secondly, I have noticed that the appellants remained in custody for a period of about 2 years as the matter dragged in court (though in most instances the appellants were to blame for the delay).
Thirdly, they were sentenced to serve four years imprisonment on 13/12/2007. They have therefore served almost 1-½ years of that sentence. Ordering a retrial would in my view be prejudicial to them, as they have been incarcerated for over 3 ½ years.
In the interests of justice therefore, I find an order for retrial should not be made. In the circumstances, I allow the appeal in its entirety and order that the appellants be set at liberty forthwith unless they are otherwise lawfully held.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 11th day of June 2009.
In presence of: -All appellants and Mr. Omwega for State.