[2015] KEHC 4691 (KLR)
The court found that the appellant was prejudiced because his application for retrial, which raised issues of fair trial under Article 50 of the Constitution, was not heard before the trial court proceeded to close his defence and deliver judgment. Although the trial court was not at fault, the failure of the High...
Source-derived case information.
- Citation
- [2015] KEHC 4691 (KLR)
- Parties
- Appellant: Jacob Orao Odero; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction and sentence quashed; retrial ordered
- Legal Topics
- Housebreaking, Stealing, Right to Fair Trial, Retrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Orao Odero
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's right to a fair trial under Article 50 of the Constitution was violated by proceeding with judgment before his High Court application for retrial was heard.
- 2 Whether the conviction and sentence should be quashed due to procedural prejudice against the appellant.
Ratio Decidendi
The court found that the appellant was prejudiced because his application for retrial, which raised issues of fair trial under Article 50 of the Constitution, was not heard before the trial court proceeded to close his defence and deliver judgment. Although the trial court was not at fault, the failure of the High Court registry to promptly bring the application to the judge's attention resulted in the appellant being denied an opportunity to have his application determined before being called upon to make his defence. This procedural lapse undermined the fairness of the trial process. In the interest of justice, the conviction and sentence were quashed and a retrial before a different...
Court Disposition
conviction and sentence quashed; retrial ordered
Orders
- The conviction and sentence against the appellant are quashed.
- The appellant shall be retried before a magistrate other than Hon. L.K. Sindani, RM.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
CRIMINAL APPEAL NO. 16 OF 2015
BETWEEN
JACOB ORAO ODERO ….……………................................. APPELLANT
AND
REPUBLIC …………....................................................... RESPONDENT
(Being an appeal from the original conviction and sentence in Criminal Case No. 446 of 2014 at Senior Principal Magistrate’s Court at Migori, Hon. L.K. Sindani, RM dated on 26th February 2015)
JUDGMENT
In the subordinate court the appellant faced a charge of housebreaking contrary to section 304(1)(a) and stealing contrary to section 279(b) of the Penal Code (Chapter 63 of the Laws of Kenya). He was convicted and sentenced to 5 years imprisonment while his co-accused was acquitted.
The appellant now appeals on the grounds set out in the petition of appeal filed on 17th March 2015. The main grounds of appeal were that there were no eye witnesses to prove the fact that he had stolen from the complainant. That no investigation was done in the case and that the person from whom the exhibits were recovered was not called to give evidence. In addition to the petition of appeal, the appellant relied on supplementary ground which expanded on the grounds of appeal. Mr Kimando, learned counsel for the respondent, supported the judgment and submitted that the prosecution proved the case beyond reasonable doubt.
However, it is not necessary for me to decide the appeal on merits. On 5th February 2015, the appellant notified the trial court that he had filed an application in the High Court applying for a re-trial. The learned magistrate noted that no order no order for stay had been issued by the High Court and that because the accused had sought several adjournments in the past, the court would not grant any further adjournments. The appellant accordingly informed the court that he was not ready for defence. The court then closed the defence and reserved judgment for 26th February 2015.
The appellant had indeed filed Migori HC Misc. App. No. 2 of 2015 on 30th January 2015 seeking orders for retrial on that basis that his rights to a fair trial under Article 50 of the Constitution were being violated. The application was brought to my attention on 7th April 2015 and as the judgment had already been delivered and this appeal filed, I made the following order, “As the applicant has filed an appeal to wit; Criminal Appeal No. 16 of 2014, the application is struck out.”
It clear that the judgment was delivered before the application in the High Court could be dealt with. The accused was therefore prejudiced as he was entitled to be heard on his application in the High Court before he made his defence. Although the trial court was not at fault in proceeding in the manner it did, the accused who was unpresented and in prison custody could not pursue his application in the High Court and his failure to pursue his defence was perhaps due to his belief that the High Court would deal with his application before he would be called upon to make his defence. There was also a failure of the High Court registry to ensure that the application was brought to the attention of the judge as soon as it was filed as it sought to stop the trial in the subordinate court.
In the circumstances and in the interest of justice, I quash the conviction and sentence and direct that the appellant be retried before another magistrate other that Hon. L. K. Sindani, RM. The appellant shall be held in custody to enable him plead to the charge before the Chief Magistrates, Court Migori on 3rd June 2014.
DATED and DELIVERED at MIGORI this 2nd day of June 2015.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Kimando, Prosecuting Counsel, instructed by the Director of Public Prosecutions for the respondent.