Charo Karisa Salimu v Republic [2016] eKLR

Key Facts

Issues

• The second issue concerned the discharge of assessors mid-trial in 2008, which the court ruled was a legal error. Under the Criminal Procedure Code (sections 262 and 263), trials for murder in the High Court required three assessors. Although the law was amended in 2007 to remove this requirement, the court held that the trial, having commenced with assessors, had to conclude with their participation. The trial judge's assumption that the parties could consent to their discharge was incorrect. The court cited precedents (e.g., Peter Ngatia Ruga v R, Bob Ayub v R) to affirm that discharging assessors mid-trial rendered the trial a nullity, a key factor in allowing the appeal.
• The court addressed the inordinate delay of over 10 years in the trial of the murder case, which the appellant argued violated his right to a fair trial under the former Constitution (section 77) and the 2010 Constitution (Article 50). The delay was attributed to multiple adjournments, including transfers of judges, selection of new assessors, lack of witnesses, and other procedural setbacks. The court referenced Canadian jurisprudence (R v Jordan, R v Morin) to underscore the importance of timely justice, noting that excessive delays foster complacency in the system. The 16-year incarceration of the appellant was deemed oppressive, leading to the quashing of the conviction.

Holdings

• The Court concluded that the appellant's trial was a nullity due to the discharge of assessors mid-trial. The appeal is allowed, the conviction is quashed, and the appellant is set at liberty, considering the 16-year delay in the trial process.
• The Court found the 16-year delay in the trial process, during which the appellant was incarcerated, constituted an unreasonable delay, infringing on the right to a fair hearing.
• The learned trial Judge erred in law by discharging the assessors, as the trial must continue with assessors if it began with them, even after the law changed. The court emphasized that the repeal of assessor requirements does not affect ongoing proceedings.

Remedies

• The Court allows the appeal, quashes the conviction, and sets the appellant at liberty.
• The Court sets the appellant at liberty forthwith unless otherwise lawfully held.
• The Court quashes the conviction on the grounds that the trial was a nullity due to the discharge of assessors.

Legal Principles

• The discharge of assessors during a murder trial was held to violate principles of natural justice. The court ruled that once a trial commenced with assessors (as required by repealed CPC sections 262-263), it must conclude with their participation, making the subsequent trial a nullity.
• The court discussed the presumption of unreasonable delay in criminal trials, referencing Canadian jurisprudence (R v Jordan) which established rebuttable presumptive ceilings for trial durations. The Kenyan Constitution's Article 50(2)(e) was interpreted as requiring trials to begin and conclude without unreasonable delay, though no specific timeframe was set.

Precedent Name

• Charles Mwangi Muraya v R
• Githunguri v R
• Bernard Kinoti M'Arachi v R
• Peter Ngatia Ruga v R
• Muiruri v R
• Jordan v R
• Bob Ayub 'alias' Edward Gabriel Mbwana 'alias' Robert Mandiga v R
• R v Morin

Cited Statute

• Constitution of Kenya, 2010
• Criminal Procedure Code
• Constitution of Kenya (former)
• Interpretation and General Provisions Act
• Penal Code
• Statute Law (Miscellaneous Amendment) Act, 2007

Judge Name

• Asike-Makhandia
• W. Ouko
• K. M'Inoti

Passage Text

• The learned Judge, we reiterate, committed an error of law and misdirected herself by assuming that the parties had the right and the court the discretion to dispense with the assessors before the trial was concluded and judgment rendered.
• In all the circumstances of this appeal, particularly the delay explained earlier, we do not think a retrial would serve any purpose after 16 years. Instead, we allow the appeal, quash the conviction and set the appellant at liberty forthwith unless otherwise lawfully held.
• This, to our mind, means that all trials before the High Court must be with the aid of assessors and the number of assessors must be three. Without satisfying these requirements about assessors, the High Court would not properly be constituted or competent for purposes of a trial before it.