[2010] KEHC 620 (KLR)
The court held that since the trial commenced in the presence of assessors, the accused acquired a right to have the trial completed with their participation. The subsequent dismissal of the assessors and continuation of the trial in their absence, even after the statutory repeal of the requirement for assessors,...
Source-derived case information.
- Citation
- [2010] KEHC 620 (KLR)
- Parties
- Applicant: Republic; Defendant: Nguma Chirima alias Suleiman
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2005
- Procedural Posture
- Criminal Case / Ruling on Validity of Trial Due to Absence of Assessors
- Outcome
- Mistrial declared; case to begin de novo.
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Trial Procedure, Role of Assessors, Statutory Repeal, Mistrial, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nguma Chirima alias Suleiman
Defendant
Procedural Posture
Criminal Case / Ruling on Validity of Trial Due to Absence of Assessors
Legal Issues
- 1 Whether the dismissal of court assessors during the trial nullified the proceedings.
- 2 Whether the accused was entitled to have his trial completed in the presence of assessors despite statutory repeal.
- 3 Whether the trial conducted partly without assessors was valid.
Ratio Decidendi
The court held that since the trial commenced in the presence of assessors, the accused acquired a right to have the trial completed with their participation. The subsequent dismissal of the assessors and continuation of the trial in their absence, even after the statutory repeal of the requirement for assessors, violated this right and rendered the proceedings a nullity. The court relied on the Court of Appeal decision in Bernard Kinoti M. Arachi v Republic, which established that such a procedural defect invalidates the entire trial. Consequently, the court declared a mistrial and ordered that the case begin de novo.
Court Disposition
Mistrial declared; case to begin de novo.
Orders
- The trial is declared a mistrial.
- The case shall begin de novo.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OFKENYA
ATMOMBASA
CRIMINAL CASE NO. 20 OF 2005
REPUBLIC ……………………………………. PROSECUTION
-VERSUS-
NGUMA CHIRIMA alias SULEIMAN .…... ACCUSED
RULING
The Accused herein NGUMA CHIRIMA alias SULEIMAN, faces a charge of Murder Contrary to Section 203 as read with S. 204 of the Penal Code. The accused entered a plea of ‘not guilty’ to the charge and his trial commenced on 19th February 2007 before Hon. Mr. Justice L. Njagi.The learned judge heard a total of eight (8) witnesses all of whom were heard in the presence of Court Assessors as was then required by the S. 262 of the Criminal Procedure Code. Hon. Justice Njagi was transferred toNairobi in August 2009 whereupon I took over the matter and proceeded to take the evidence of the two (2) remaining witnesses, this time in the absence of the assessors. This was in view of the fact that the requirement for Assessors had been done away with following the enactment of the ‘Statute Law (Miscellaneous Amendments) Act No. 7 of 2007’. The prosecution finally closed their case on 30th September 2010. The matter came up for submissions on 25th October 2010 at which point MR. GICHANA. Advocate for the accused pointed out that dismissal of the assessors nullified the whole trial. MR. MUTETI learned State Counsel conceded this point. I am guided by the decision of the Court of Appeal in the case of BERNARD KINOTI M. ARACHI –VS-REPUBLICCRIM APPEAL 114 of 2008. In this case their lordships held that in a case commenced in the presence of assessors the accused acquires a right to have his trial heard and determined with the aid of the same assessors. Any dismissal of the assessors before the conclusion of the trial effectively denies the accused this right and nullifies such a trial. This is precisely the situation obtaining in this case. Notwithstanding the repeal of S. 262 of Act No. 7 of 2007, the accused was entitled to have his trial completed in the presence of assessors. The continuance of the trial in the absence of such assessors invalidated the whole process. As such I do declare a mistrial in this case and I hereby direct that the case begin de novo.
Dated and Delivered inMombasathis 15th day of November 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Situma holding brief for Mr. Gichana
Mr. Onserio for State
M. ODERO
JUDGE
15/11/2010