[2009] KEHC 2979 (KLR)
The court held that, based on binding Court of Appeal authority, an accused who has been partially tried with the aid of assessors retains a vested right to have the remainder of the trial conducted with assessors, even after the repeal of the statutory provisions mandating their use. The court found that dispensing...
Source-derived case information.
- Citation
- [2009] KEHC 2979 (KLR)
- Parties
- Applicant: Republic; Defendant: Joshua Mworia Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 166 of 2003
- Procedural Posture
- Criminal Case / Ruling on Trial Procedure After Partial Hearing With Assessors
- Outcome
- Assessors and investigating officer to be recalled; trial to proceed with assessors.
- Judges
- MJA Emukule
- Legal Topics
- Murder Trial, Trial With Assessors, Procedural Irregularity, Retrospective Legislation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joshua Mworia Mwiti
Defendant
Procedural Posture
Criminal Case / Ruling on Trial Procedure After Partial Hearing With Assessors
Legal Issues
- 1 Whether the accused, having partially been tried with the aid of assessors, retains a vested right to continue the trial with assessors despite the repeal of the relevant statutory provisions.
- 2 Whether the court can proceed to conclude the trial without assessors after some witnesses have testified in their presence.
- 3 What is the appropriate remedy for the procedural irregularity arising from dispensing with assessors mid-trial.
Ratio Decidendi
The court held that, based on binding Court of Appeal authority, an accused who has been partially tried with the aid of assessors retains a vested right to have the remainder of the trial conducted with assessors, even after the repeal of the statutory provisions mandating their use. The court found that dispensing with assessors mid-trial was a procedural irregularity that could not be cured by the subsequent repeal of the relevant law. The only lawful options were to declare a mistrial and commence afresh without assessors, or to recall the assessors and the witness who testified in their absence, and proceed with the trial in accordance with the procedure for trials with assessors. In...
Court Disposition
Assessors and investigating officer to be recalled; trial to proceed with assessors.
Orders
- The assessors and P.W.5 (the investigating officer) shall be recalled to testify in the presence of assessors.
- The court shall thereafter proceed in accordance with the procedure for trial with the aid of assessors, sum up the case to them, hear their opinion, and proceed to write judgment.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Criminal Case 166 of 2003
REPUBLIC………………………………………………………………..PROSECUTOR
V E R S U S
JOSHUA MWORIA MWITI………………………………………..………ACCUSED
R U L I N G
The accused is charged with the murder of Grace Karimi on the early night of 13. 10. 2003 at Kirwire Village Ukuu Sub-Location of Uruku Location, Meru Central District, and Eastern Province.
The trial of the accused commenced in the presence and with the aid of assessors. Of the five (5) witnesses called by the prosecution, four (4) of them testified in the presence of 3 assessors.
When I took over this matter, I dispensed with the use of assessors and proceeded to hear and take the evidence of the investigating officer P.W.5. He is the only witness who testified in the absence of assessors. The prosecution closed its case after the testimony of this witness.
While working on a Ruling whether or not the prosecution had established a prima facie in order to put accused to his defence, I received a batch of judgments of the Court of Appeal delivered at Nyeri during its May 2009 Session. My attention was caught by the decision of the Court of Appeal in the case of Peter Maina Wanyika vs Republic (Criminal Appeal No. 49 of 2008). In that case that court reversed the decision of my brother, the Hon. Mr. Justice Makhandia dispensing with the use of assessors, like I did in this case. In that case eight (8) witnesses had already testified in the presence of Assessors. That court held that the accused had thereby acquired a right to be tried with the aid of assessors and the court could not deprive the accused of that right, and that is, notwithstanding the repeal of Section 262 of the Criminal Procedure Code which provided that:-
“All trials before the High Court shall be with the aid of Assessors”
While noting that the said section and other provisions relating to trial with the aid of assessors were all repealed by the Statute Law (Miscellaneous Amendments) Act 2007 (No 7 of 2007) which came into force on 15th October, 2007, it did not take away the accused’s vested right to trial with the aid of assessors. The Appeal Court followed its decision in Bernard Kinoti M’Arachi vs Republic Criminal Appeal No. 114 of 2008 (unreported) which was in turn based upon the provisions of Section 23(3) of the Interpretation and General Provisions Act (Cap 21 Laws of Kenya) which provides:-
23(3) “Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears, the repeal shall not:-
(a)…………………………………………….
(b)…………………………………………….
(c)………………………………………………
(d)……………………………………………..
(e)affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment may be imposed as if the repealing written law had not been made.”
Although the language of Section 23(3)(e) of the Act (aforesaid) appears discretionary“may be instituted …….or enforced” the Appeal Court by its two decisions appears to have closed the window of discretion where in a particular case a trial has advanced with the aid of assessors.
In this case, the 4 most important witnesses gave their evidence in the presence of assessors. The evidence of P.W.5, the Investigating Officer, was received in the absence of assessors. In light of the Appeal Court’s decision in the two cases above, the only viable option open to this court are either
(a) to declare a mistrial, and commence the hearing afresh in the absence of assessors, or
(b) recall the assessors and P.W.5 to testify in the presence of assessors, and thereafter the court will form an opinion as to whether or not the prosecution has established a prima facie case to put the accused on his defence and proceed to conclude the trial in the usual way.
In the interest of both time and justice to the accused I direct that the assessors and P.W.5 be recalled to testify. Thereafter the court will proceed in accordance with the procedure for trial with aid of assessors sum up the case to them hear their opinion, and proceed to write judgment. I so order.
Dated, Delivered and Signed at Meru This 12th Day Of June 2009
M. J. ANYARA EMUKULE
JUDGE.