[2008] KECA 11 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT KISUMU

CRIMINAL APPEAL 3 OF 2007

MOSES OTIENO ODHIAMBO

MICHAEL OGUTU ASUMBA ….....……..……..………….. APPELLANTS

AND

REPUBLIC ……….…..……………………..…………..… RESPONDENT

(Appeal from a conviction and sentence of the High Court of Kenya at Busia (Sergon, J.) dated 27th November, 2006

in

H.C.CR.C. NO. 15 OF 2003)

********************

JUDGMENT OF THE COURT

Moses Otieno Odhiambo (1st appellant) and Michael Ogutu Asumba, the 2nd appellant were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, the particulars contained in the information being that on 12th day of June, 2003 at Jengo Village, Elukong’o Sub-location in Busia District within Western Province, the two of them jointly with others not before the court murdered Elias Ndiawa Omoche, hereinafter “the deceased”.

The record before us shows the following:-

On 12th September 2003, the appellants appeared before a Deputy Registrar at Busia and it seems that they were remanded in custody to 7th October, 2003 when they would appear before a judge for their plea to be taken. On the latter date, they appeared before Mitey, J. (as he then was) and pleaded not guilty to the charge. They were to eventually appear before Sergon, J. on 4th February, 2004, when two assessors, namely James Bedi Owaki and Jane Njoki Ngugi, were selected. Sergon, J. then stood over the matter to 6th February, 2004, when a third assessor, Mathias Ojiambo Omido, was selected. The hearing of the case eventually opened before the same Judge on 8th July, 2004 when the record shows:-

“Coram: J.K. Sergon – Judge

Mr. Onderi for the State.

Musundi – Court clerk

Accused.

Assessors: 1. ………………… )

2. ………………….) all present

3. ………………….)

Dr. Elijah Kavohoro Njau (PW1) then gave evidence as to how he had performed an autopsy on the body of the deceased and came to the conclusion that the deceased had died due to head injuries. The matter was thereafter adjourned and the hearing did not resume until 2nd February, 2005 when the Coram this time around is shown as:-

“J.K. Sergon, J.

Mr. Onderi, for the State

Musundi – Court clerk

Accused.

Assessors:

1. Mildred Eunice Mbai

2. Pamela Namenge Wasindi

3. Aramisi Makhoha Nakhone.”

It is clear from these names that these were not the same people who had been selected as assessors between 4th and 6th February, 2004 and who heard the evidence of Dr. Njau on 8th July, 2004. Totally new assessors had come in by 2nd February, 2005 and it is the new assessors who heard the rest of the evidence beginning with that of Rosemary Apondi(PW2) upto that of the last prosecution witness Corporal Nelson Tranzi(PW10). The new assessors did not however hear the evidence of Dr. Njau. It also appears from the record that one assessor subsequently absented herself – Eunice Mbai was said to have travelled to the United States of America and her date of return was not known – and was discharged. Only two assessors gave their verdict but even the verdict of the two was itself flawed because they did not hear part of the evidence, namely that of Dr. Njau. There is no explanation in the superior court’s record as to what had happened to the first set of assessors to warrant their substitution with a new set of assessors and why Dr. Njau was not called to testify again before the new set of assessors.

Faced with these difficulties, it was not surprising that Mr. Musau, the learned Senior Principal State Counsel, conceded that the trial was defective and asked us to order a retrial. M/s Arati, learned counsel for the appellants and who had concentrated her fire on rather inconsequential matters and did not even touch on this point, agreed with Mr. Musau but asked us not to order a retrial on the basis that the appellants have been in custody for some five years since the date of the alleged offence. That is basically correct but we note that the judgment of the High Court was given on 27th November, 2006 and Mr. Musau assured us that their witnesses would still be available. A person lost his life in the incident and that is not a matter to be taken lightly. Taking into account all the relevant facts and circumstances the order which commends itself to us as being just and fair in all the circumstances is to order a retrial. We accordingly allow the appeal of each appellant, set aside the conviction recorded against each one of them and also set aside the sentences of death. We substitute those orders with one that the appellants shall be tried afresh before a different judge who shall sit without assessors because that institution has now been abolished. Pending the new trial, the appellants shall be detained in prison custody. Those shall be our orders.

Dated and delivered at Kisumu this 28th day of November, 2008.

R.S.C. OMOLO

……………..

JUDGE OF APPEAL

E.M. GITHINJI

……………….

JUDGE OF APPEAL

P.N. WAKI

………………

JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR