Charles Anunda Inzofu v Republic [2015] KECA 233 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

CORAM: MARAGA, GATEMBU & MURGOR, JJ.)

CRIMINAL APPEAL NO. 149 OF 2013

BETWEEN

CHARLES ANUNDA INZOFU…...........……….. APPELLANT

AND

REPUBLIC …………….……………………. RESPONDENT

(Appeal from a Judgment of the High Court of Kenya at Bungoma (Hon. F. N. Muchemi, J.) dated 27th October, 2010

in

H.C.CR. NO. 2  OF 2005)

**********************

JUDGMENT OF THE COURT

The appellant, Charles Anunda Inzofu, was on 17th  January 2005 charged with the offence of murder     contrary to section 203 as read with section 204 of the   Penal Code. The particulars of the offence were that    on 7th December 2004 at Muliro Village Ndalu Location in the then Bungoma District within the then  Western Province, he murdered Brian Inzofu. After a   trial, the High Court in a judgment delivered on 27th October 2010 found the appellant guilty of murder,   convicted him and sentenced him to death.

He has appealed against that conviction and sentence   on the grounds that there was no direct or sufficient   evidence to support the conviction, and that the prosecution did not establish his guilt to the required   standard.

At the hearing of the appeal before us, Mr. David   Korir, learned counsel for the appellant, submitted that   the   trial commenced with assessors; that during the    currency of the trial the law was amended and the    requirement of assessors was dispensed with; that only    PW 1, 2 and 3 testified in the presence of assessors   and thereafter the assessors were discharged; that notwithstanding the amendment to the law, the trial  should have continued with assessors; and that the   effect of continuing the trial without assessors was to    render the entire trial a mistrial.

Ordinarily, Mr. Korir argued, a retrial should be   ordered but in the circumstances of this case, a retrial      would not serve the interests of justice because the    appellant has been in custody for over ten years and    there would be difficulties in procuring witnesses.

Opposing the appeal Mr. Job Mulati, learned Principal   Prosecution Counsel, submitted that although the issue of the trial proceeding without assessors is not raised  in the appellant’s grounds of appeal, the record shows  that when the trial resumed on 23rd June 2008 before a   different Judge without assessors, the provisions of    section 200 of the Criminal Procedure Code were complied with and the advocate for the appellant     indicated that the appellant did not wish to have any of    the witnesses recalled. If the Court is however  persuaded that there was a mistrial, Mr. Mulati argued,   then a retrial should be ordered, as witnesses will be available to testify.

Mr. Mulati concluded his submissions by urging that the circumstantial evidence on the basis of which the  appellant was convicted was overwhelming and that we should dismiss this appeal and uphold the conviction  and sentence.

We have considered the appeal and the submissions by  learned counsel. When the appellant was arraigned before the High Court in January 2005, it was a legal     requirement under Section 262 of the Criminal    Procedure Code that all “trials before the High   Court shall be with the aid of assessors.” The  record shows that the trial in this case commenced   with the aid of three assessors, as was required under Section 263 of the Criminal Procedure Code, but after an adjournment of the trial on 18th October 2007 the trial proceeded without the assessors and the    witnesses namely, PW 4 to PW 9 and the appellant did    not testify in the presence of assessors.

We are alive to the fact that by dint of The Statute  Law (Miscellaneous Amendments) Act No. 7 of 2007, Sections 262 and 263 of the Criminal Procedure Code   among other provisions of the Criminal Procedure   Code were deleted with effect from 15th October,   2007 with the result that the requirement of     conducting trials in the High Court with the aid of  assessors was dispensed with. Notwithstanding the       repeal of Sections 262 and 263 of the Criminal Procedure Code, the trial court should not have    abandoned the assessors’ midstream. In Peter NgatiaRuga vs. Republic [2010] eKLR, this Court when     dealing with a similar situation stated:

“We are aware that pursuant to Act No. 7 of 2007, trial with the aid of assessors was repealed and removed from our statutes, but the trial in respect of this appeal began as we have stated, on 10th August, 2006 long before the provisions for trial with the aid of assessors were repealed and that being the case, by virtue of the provisions of section 23 (3) (e) of the Interpretation and General Purposes Act, Chapter 2, Laws of Kenya, which was applicable, the trial should have continued with the aid of assessors to the end.”

This Court has consistently emphasized an appellant’s entitlement to have the entire evidence tendered by the prosecution, as well as his own evidence, heard        and evaluated by the assessors. A trial that begins with assessors and continues without them is unlawful     unless the attendance of the assessors is prevented, for    sufficient reason, under the conditions prescribed        under section 294 of the Criminal Procedure Code.       See Cherere Gikuli v R [1954] 21EACA 304;  Dickson Mwaniki M’Obici and another vs. R, Criminal Appeal No. 78 of 2006; Bob Ayub alias Edward Gabriel Mbwana alias Robert Mandigavs. Republic Cr. Appeal No. 106 of 2009; John Ndirangu Wahome vs. Republic [2012] eKLR.

In a recent decision in Brian Kariuki v Republic[2013] eKLR where, like here, a trial commenced   with assessors but was concluded without them, this     Court had this to say:

“In this instant the trial commenced before the Legal Notice No. 7 of 2007, came into force on 15th October, 2007, and therefore the trial court ought to have continued with the said assessors. We therefore, find that by virtue of the foregoing the trial at the High Court was a nullity.”

We therefore uphold the submission by learned   counsel for the appellant that the trial was anullity.

As to whether, having regard to the principles in Muiruri vs. Republic [2003] KLR 552, we should     order a retrial, we think the interests of justice in this       case dictate that we do so. The life of a very young    person was lost; the majority of the prosecution    witnesses are family members who the respondent    indicates will be  easy to trace.

In conclusion, we allow the appeal. The appellant’s  conviction for the offence of murder is hereby quashed   and the sentence imposed on him is set aside. We direct that the appellant be presented to the High   Court at Bungoma before a judge other than F. N.     Muchemi, J for retrial, without assessors, for the same   offence.

Dated and delivered at Eldoret

This 29th day of October, 2015.

D. K. MARAGA

……………………..

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

………………………..

JUDGE OF APPEAL

A. K. MURGOR

……………………..

JUDGE OF APPEAL

I certify that this is a true

Copy of the original.

…………………………….

DEPUTY REGISTRAR