[2010] KEHC 744 (KLR)
The court found that the discharge of assessors before the conclusion of the murder trial constituted a procedural irregularity, as established by the Court of Appeal in Bernard Kinoti M'Arachi v Republic. Despite the accused having spent six years in custody and the trial having been concluded, the court was bound...
Source-derived case information.
- Citation
- [2010] KEHC 744 (KLR)
- Parties
- Applicant: Republic; Defendant: Mumbo Mbuto Nyawa alias Munyongo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 16 of 2004
- Procedural Posture
- Criminal Case / Judgment on Validity of Trial
- Outcome
- mistrial declared; trial to begin de novo
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Procedure Irregularity, Assessors in Criminal Trials
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mumbo Mbuto Nyawa alias Munyongo
Defendant
Procedural Posture
Criminal Case / Judgment on Validity of Trial
Legal Issues
- 1 Whether the discharge of assessors mid-trial rendered the murder trial a nullity.
- 2 Whether the trial should be declared a mistrial and ordered to begin de novo.
Ratio Decidendi
The court found that the discharge of assessors before the conclusion of the murder trial constituted a procedural irregularity, as established by the Court of Appeal in Bernard Kinoti M'Arachi v Republic. Despite the accused having spent six years in custody and the trial having been concluded, the court was bound by the appellate authority, which held that such a trial is a nullity. Consequently, the trial was declared a mistrial and ordered to begin de novo, as the absence of assessors vitiated the proceedings.
Court Disposition
mistrial declared; trial to begin de novo
Orders
- The trial is declared a nullity.
- A mistrial is declared.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OFKENYA
ATMOMBASA
CRIMINAL CASE NO. 16 OF 2004
REPUBLIC ……………………………………. PROSECUTION
-VERSUS-
MUMBO MBUTO NYAWA
alias MUNYONGO …………………………….…... ACCUSED
JUDGEMENT
The accused MUMBO MBUTO NYAWA alias MUNYONGO, was arraigned in the High Court in Mombasa on a charge of MURDER CONTRARY TO SECTION 203 as read with S. 204 OF THE PENAL CODE. The prosecution called a total of six (6) witnesses in support of their case. At the close of the prosecution case the accused was put to his defence. I have now carefully considered the record of the trial before the High Court. I note that when the trial commenced before Hon. Justice J. Sergon on 26th April 2006, there were assessors present in court as was then required by S. 262 of the Criminal Procedure Code. However following the passing of the Statute Law (Miscellaneous Amendment) Act 2007 which outlawed the use of assessors in murder trials, the Hon. Justice Sergon did discharge the assessors on 26th November 2007. Following the transfer of the Hon. trial Judge to Nyeri I took over the hearing of this case and proceeded to hear four (4) witnesses in the absence of assessors. Following decision in the Court of Appeal this was an irregularity. In the case of BERNARD KINOTI M’ARACHI –VS- REPUBLIC where in a case where the assessors were discharged before the conclusion of the trial, the Court of Appeal declared the trial a nullity. I am indeed quite surprised that neither MR. CHIDZIPHA for the accused nor MR. ONSERIO for the State raised this issue in their final submissions to the court. I am quite alive to the fact that the trial had been concluded as well as the fact that the accused has spent six (6) full years in custody since March 2004. However I am bound by this decision from the Court of Appeal. This trial in which the assessors were discharged mid-trial was a nullity. I must therefore declare a mistrial and I hereby order that the trial begin de novo.
Dated and Delivered inMombasathis 15th day of November 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Siruma holding brief for Mr. Chidzepha
Mr. Onserio for State
M. ODERO
JUDGE
15/11/2010