[2006] KECA 45 (KLR)
The Court of Appeal found that the second magistrate, upon taking over the trial, failed to inform the appellant of his rights under section 200(3) of the Criminal Procedure Code, rendering the retrial a nullity. Furthermore, the court observed that the appellant was a child at the time of the offence and, under the...
Source-derived case information.
- Citation
- [2006] KECA 45 (KLR)
- Parties
- Appellant: Edward Ochieng Ouko; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 200 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released forthwith unless held for another lawful cause.
- Judges
- AM Githinji
- Legal Topics
- Retrial Procedure, Section 200 Cpc, Rights of Accused, Children Act Application
- 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
Edward Ochieng Ouko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's rights under section 200(3) of the Criminal Procedure Code were violated during the retrial.
- 2 Whether the appellant, being a child under the Children Act, could lawfully be sentenced to imprisonment.
- 3 Whether the conviction and sentence imposed by the magistrate and confirmed by the High Court were lawful.
Ratio Decidendi
The Court of Appeal found that the second magistrate, upon taking over the trial, failed to inform the appellant of his rights under section 200(3) of the Criminal Procedure Code, rendering the retrial a nullity. Furthermore, the court observed that the appellant was a child at the time of the offence and, under the Children Act, could not lawfully be sentenced to imprisonment. Both the conviction and sentence were therefore unlawful. The court allowed the appeal, quashed the conviction, set aside the sentence, and ordered the appellant's immediate release unless held for another lawful cause.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released forthwith unless held for another lawful cause.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CRIMINAL APPEAL 200 OF 2006
EDWARD OCHIENG OUKO ……..…………………….….. APPELLANT
AND
REPUBLIC …….……………...…………………………… RESPONDENT
(An appeal from a Judgment of the High Court of Kenya at Kisumu (Warsame, J) dated 13th July, 2006
In
H.C.Cr.A No. 41 of 2005)
********************
JUDGMENT OF THE COURT
The offence of which the appellant was convicted was committed on 7th September, 2002. That is more than four years ago. We are told that the appellant at first pleaded guilty, was convicted and sentenced to a term of imprisonment. He appealed to the High Court and it appears his appeal was allowed and a retrial ordered. The new trial opened before Mr. Korir, a Senior Resident Magistrate, on 8th June, 2004 and that Magistrate heard evidence of three witnesses and would appear to have gone on a transfer. Another magistrate called L.N. Mbugua took over the trial on 22nd July, 2004 and all he did on taking over was to record that:-
“Case to proceed from where the previous magistrate had stopped as per section 200 of C.P.C.”
The second magistrate totally failed to inform the appellant of his rights under section 200 (3) the Criminal Procedure Code. Under that section the magistrate was mandatorily required to inform the appellant of his right, to have all the previous witnesses testify afresh or to be further cross-examined. That right was violated by the magistrate and it renders the appellant’s second trial a nullity. We cannot order a further retrial. We must also express our concern that neither the magistrate nor the learned Judge of the superior court noticed that the appellant, for the purposes of the Children Act, was himself a child, and even if he was guilty of the offence charged, he could not be sent to prison. Yet the magistrate sentenced him to life imprisonment with hard labour and the learned Judge of the High Court confirmed that sentence as lawful. It certainly was not lawful. We allow the appeal, quash the conviction, set aside the sentence and order that the appellant be released from prison forthwith, unless he be held for some other lawful cause.
Dated and delivered at Kisumu this 24th day of November, 2006.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P.K. TUNOI
……………………..
JUDGE OF APPEAL
E.M. GITHINJI
……………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.