What occasions a retrial?

Generally, the court will order one where the original trial was defective, not where the conviction is set aside for want of evidence or the prosecutorial missteps

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BY Newton Arori

An order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to an accused person” – The Court of Appeal in Fatehali Manji v Republic (1966) EA 343.

When, in a criminal case, the accused succeeds on appeal and their conviction is set aside, the appellate court may make one of two orders: either to release the accused or to order a retrial at the court where the case was first tried.

Under what circumstances is a retrial ordered? While the rule is not cast in stone, there are guiding principles that courts obey.

Generally, the appellate court will order a retrial where the original trial was defective, not where the conviction is set aside for insufficiency of evidence or the prosecution’s missteps. This is because giving the prosecution a chance to fill gaps in its case would amount to prosecuting the accused twice for the same offence, which would violate the rule against double jeopardy.

The case of Laban Kimondo Karanja & 2 Others v. Republic (2006) eKLR is instructive in this respect. The accused appealed after they had been convicted of the offence of assault. In their appeal, the argued that their trial at the magistrate’s court was a nullity since the prosecutor, a police sergeant was not a qualified prosecutor.

The High Court declined to order a retrial of the accused persons for reasons that the convictions in this case were quashed due to a defect ‘for which the prosecution is to blame.’

But even where the conviction is set aside due to the trial court’s faults and not the prosecution’s, it does not automatically follow that the appellate court will order a retrial. In the case of PHN v. Respondent (2016) eKLR, for example, the appellant, after being convicted of the offence of incest and being sentenced to serve life imprisonment, appealed to the High Court on grounds that the trial magistrate had erred in not complying with a key section of the law. The prosecution, on its part, did not oppose the appeal; it conceded that the trial court was indeed at fault. Prosecution counsel, however, urged the High Court to order a retrial.

As it turned out, the accused had first been arraigned in court five years prior when he underwent the entire trial process and tendered his defence. Because of this fact, the High Court found that that ordering a retrial would be prejudicial to the appellant, since the prosecution was already aware of his defence.

The High Court further observed that a conviction was unlikely even if a retrial were to be ordered. Accordingly, the prosecution’s prayer for a retrial was denied, and the appellant set at liberty.

In the case of Julieta Luvasia &Another v Republic (2017) eKLR, the appellants appealed after being convicted and sentenced on their own plea of guilty. The trial court’s record indicated that when they had first appeared before the trial magistrate and the charges read out, they had responded, ‘it is true.’

The prosecutor had then re-read the facts of the case, that the accused had been arrested in Kakamega forest cutting logs without prior authorisation. Asked whether the facts were correct, each of the accused replied, ‘the facts are true.’ At this stage, the trial magistrate was required to write in the court file ‘plea of guilty entered.’ He instead wrote ‘PGE’, presumably an abbreviation.

It was the High Court’s holding that this had the effect of the magistrate failing to enter plea, as a plea cannot be based on assumptions. In addition, the magistrate had not recorded a conviction. The net effect of the magistrate’s misdirection was that the appellants were sentenced for offences they had not been convicted of.

Upon finding that the proceedings at the magistrate’s court were irregular, the question before the High Court was whether it should order a retrial or discharge the appellants. Justice Njagi held that since the appellants had been sentenced for offences for which they had not been convicted and served one month jail time before being released pending appeal, a retrial would not serve justice in this case. The appellants were discharged.

A similar scenario played out in KMM v. Republic (2015) eKLR. Here, the trial magistrate sentenced a minor to death, a violation of Section 190(2) of the Children’s Act which expressly provides that ‘no child shall be sentenced to death’.

Further, the minor had not been afforded legal representation as required by the same Act which provides in Section 186 (b), “every child accused of having infringed any law shall…if he is unable to obtain legal assistance be provided by the Government with assistance in the preparation and presentation of his defence.”

By the time the appeal was heard, the minor had spent 13 months in custody. The High Court was of the opinion that he should be released. The time he had spent in custody was greatly prejudicial for a child who should have been attending school either out of prison or in an appropriate institution had the trial been conducted in accordance with the law. A retrial would be inappropriate, the court decided.

In the fairly recent case of Zachaeus Kombo Olumatete v. Republic (2018) eKLR the appellant had been charged with the offence of defilement, found guilty and sentenced to serve 21 years imprisonment. Being dissatisfied with both his conviction and sentence, Olumatete appealed to the High Court.

The crux of his appeal was that the trial magistrate had failed to inform him of his right to re-summon witnesses as provided under Section 200(3) of the Criminal Procedure Code. The High Court, after finding that the magistrate had not complied with that section (thus rendering the original trial a nullity) next considered the issue whether or not a retrial should be ordered.

It was the court’s finding that the appellant had spent a cumulative 9 months 20 days in remand as the appeal was pending. The judge held that this period was not long enough to cause prejudice to the appellant, and that the period could “not surpass the interests of justice in trying a serious offence as defilement.” He also stated that it was in the public interest for such a grave offence to be disposed of in a trial conducted in an objective and fair manner.

A retrial was therefore ordered.  (

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