[2010] KEHC 131 (KLR)
The court found that the trial commenced with assessors as required by law at the time, but the last three prosecution witnesses testified in their absence following a statutory amendment abolishing assessors. However, the Court of Appeal in Bernard Kinoti M’Arachi v Republic (2008) held that if a trial begins with...
Source-derived case information.
- Citation
- [2010] KEHC 131 (KLR)
- Parties
- Respondent: Republic; Accused: Felix Mutweta Maghanga
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 6 of 2005
- Procedural Posture
- Criminal Case / Ruling on Validity of Trial After Prosecution Case Closed
- Outcome
- mistrial declared; case to begin de novo
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Trial With Assessors, Procedural Invalidity, Statutory Amendments, Right to Fair Trial
- 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
Republic
Respondent
Felix Mutweta Maghanga
Accused
Procedural Posture
Criminal Case / Ruling on Validity of Trial After Prosecution Case Closed
Legal Issues
- 1 Whether the trial of the accused was valid where the last three prosecution witnesses testified in the absence of assessors.
- 2 Whether the absence of assessors after commencement of trial with assessors renders the proceedings invalid.
Ratio Decidendi
The court found that the trial commenced with assessors as required by law at the time, but the last three prosecution witnesses testified in their absence following a statutory amendment abolishing assessors. However, the Court of Appeal in Bernard Kinoti M’Arachi v Republic (2008) held that if a trial begins with assessors, the accused has a right to have the trial completed with assessors present. The absence of assessors for part of the proceedings, without formal discharge, violated this right and rendered the entire trial invalid. The High Court, being bound by the Court of Appeal, declared a mistrial and ordered the case to begin de novo.
Court Disposition
mistrial declared; case to begin de novo
Orders
- The entire trial is declared invalid due to procedural irregularity.
- The case is to begin de novo before a competent court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 6 OF 2005
REPUBLIC …………………………….......................……….. PROSECUTOR
VERSUS
FELIX MUTWETA MAGHANGA .....................................……….……. ACCUSED
RULING
The accused FELIX MUTWETA MAGHANGA was charged before the High Court Mombasa with the offence of MURDER CONTRARY TO SECTION 203 as read with S. 204 PENAL CODE. The accused entered a plea of ‘not guilty’ to the charge and his trial commenced before HON. MR. JUSTICE L.N. NJAGI on 26th June 2006. Following the transfer of Justice Njagi to Nairobi this court took over the matter by which time the prosecution had already closed their case having called a total of eleven (11) witnesses. MR. KADIMA Advocate acting for the accused opted not to make any submissions on ‘no case to answer’ and the matter was reserved for ruling on 9th December 2010.
I have carefully perused the proceedings before Hon. Justice Njagi. I note that a total of eight (8) witnesses testified in the presence of assessors. This was at the time the trial commenced a requirement of the law viz S. 262 and S. 263 of the Criminal Procedure Code. Following the enactment of the STATUTE LAW (Miscellaneous Amendments) Act 2007, this legal requirement that assessors sit in on murder trials was abolished. Although the record does not indicate that my learned brother at any point formally discharged the assessors in this case, evidence of the last three (3) witnesses PW9, PW10,andPW11 was taken without assessors sitting in court. This following the decision of the Court of Appeal in the case of BERNARD KINOTI M’ARACHI –VS- REPUBLIC (2008) was unprocedural. In that case their lordships held that where a trial is commenced with the aid of assessors the accused acquires the right to have his trial completed with the presence of assessors. Any discharge of the assessors before the conclusion of the trial denies the accused this acquired right and thus renders the proceedings invalid. Being a court subordinate to the Court of Appeal and based on the doctrine of ‘stare decisis’ I am bound by this decision. The fact that three (3) prosecution witnesses testified in the absence of assessors renders the whole trial invalid. As such I have no option but to declare a mistrial in this matter and order that the case begin de novo. It is so ordered.
Dated and Delivered in Mombasa this 9th day of December 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Kadima for Accused
Mr. Onserio for State
M. ODERO
JUDGE
9/12/2010