[2013] KEHC 2587 (KLR)
The court found that the failure to recall PW2 after the change of magistrate constituted a grave violation of the appellant's right to a fair trial as provided under Section 200 of the Criminal Procedure Code. Although the offence charged was serious and attracted the death penalty, the appellant had already been...
Source-derived case information.
- Citation
- [2013] KEHC 2587 (KLR)
- Parties
- Appellant: Kennedy Kalulavu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 63 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Right to Fair Trial, Retrial Principles, Custodial Sentences, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Kalulavu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to recall PW2 after the change of magistrate violated the appellant's right to a fair trial.
- 2 Whether a retrial should be ordered given the length of time the appellant has been in custody and the seriousness of the offence.
Ratio Decidendi
The court found that the failure to recall PW2 after the change of magistrate constituted a grave violation of the appellant's right to a fair trial as provided under Section 200 of the Criminal Procedure Code. Although the offence charged was serious and attracted the death penalty, the appellant had already been in custody for six years, a period the court considered substantial. Balancing the appellant's right to a fair and expeditious trial against the interests of justice and the rights of victims and society, the court determined that ordering a retrial would be unjust. Consequently, the appeal was allowed, the conviction quashed, and the sentence set aside, with the appellant...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 63 OF 2009
KENNEDY KALULAVU...........................APPELLANT
VERSUS
REPUBLIC…………………………………………RESPONDENT
(From original sentence and conviction in Criminal Case No.2970 of 2007 of the Chief Magistrates court at Thika by Hon. C.W. Meoli (Chief Magistrate)
JUDGMENT
The trial of KENNETH KAVULAVU LIHANDA commenced before Hon. U.P. Kidula, Chief Magistrate. However, after receiving the evidence of three prosecution witnesses, the learned magistrate ceased to hold that judicial office.
Thereafter, the trial resumed before Hon. C.W. Meoli, Chief Magistrate, as she then was.
Pursuant to the provisions of Section 200 of the Criminal Procedure Code, the succeeding magistrate informed the accused of his right to demand, if he so wished the recall of any of the witnesses who had testified before her predecessor.
The accused informed the court that he was happy to have the case proceed further from the stage it had reached. In effect, the accused did not want the whole trial to start afresh.
The accused asked the succeeding trial magistrate to recall PW2.
Regrettably, PW2 was never recalled thereafter. Instead, the prosecution closed its case after calling PW 4 and PW 5.
Bearing in mind the fact that PW 2was never recalled, Mr. Kabaka, learned state counsel conceded this appeal.
When making that concession, counsel pointed out that the failure to recall PW 2 constituted a grave violation of the rights of the accused.
However the Respondent urged us not to set the appellant free. The Respondent asked us to order that the appellant be retried.
Mr. Kabaka told this court that the witnesses will be available, if a retrial was ordered. He also pointed out that if the retrial were to result in a conviction, the appellant was likely to suffer the death penalty.
Therefore the Respondent submitted that justice demands the re-trial of the appellant.
In answer to the Respondent’s request for a retrial, the appellant said that he had already been in custody for far too long. He was therefore opposed to his retrial.
We note that the appellant was arrested on 9th June 2007. That is six years ago.
All through the trial, the appellant was in custody, because at that time, the offence of Robbery with violence was not bailable. Therefore, there is no doubt that the appellant has already been in custody for a considerable length of time.
On the other hand, the offence with which he had been charged is a serious one. It attracts the death penalty as a sentence, if the accused was convicted.
In determining what justice demands, this court has conducted a delicate balancing act between the rights of the appellant, to a fair trial within a reasonable time, and the rights of the victims and of the society in general, to give evidence which would enable the court adjudicate appropriately on the matter.
Doing the best we can in the circumstances, we find that the interests of justice militate against a retrial.
Accordingly, we allow the appeal, quash the conviction and set aside the sentences.
We order that the appellant be set at liberty forthwith unless he is otherwise lawfully held.
Dated, Signed and Delivered at Nairobi, this 25th day of July, 2013.
A.MBOGHOLI MSAGHA
JUDGE
FRED A. OCHIENG
JUDGE