Fresh trial for 400 convicts freed over courts’ oversight

The State has been handed an ardous task of tracing and re-arresting hundreds of convicts released during the Judiciary Service Week.

All accused persons who were convicted or acquitted will be tried afresh after the Supreme Court ruled Friday that mixed benches composed of judges from the Lands and Environmental division and other divisions were not properly constituted, making their decisions null and void.

Different mandates

The ruling by the full bench of the Supreme Court comprising Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and justices Jackton Ojwang, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola will see 400 criminal cases heard afresh.

Both criminal and civil cases will be tried in a decision bound to send shock waves within the justice system.

“Despite the draw back our decision will have on the backlog of cases in our courts, we have no choice but to accede to the respondents’ plea that their appeal at the High Court be re-heard,” the verdict read by Justice Lenaola on behalf of the other judges, reads in part.

Kenya’s highest court was giving a landmark ruling in an appeal case filed by Director of Public Prosecution Keriako Tobiko against three convicts - Karisa Chengo, Jefferson Kalama and Kitsao Ngati.

Tobiko argued that the Court of Appeal erred in ordering a re-trial for the three after the High Court had confirmed their conviction for robbery with violence by a Magistrates Court. Yesterday, the Supreme Court ruled that judges take oath of allegiance to their specific courts and that although the different divisions of the High Court have equal status, they are different from one another and their judges cannot cross over to hear cases in other divisions.

The court ruled that that judges in the Environment and Lands division took oath of office restricted to determining cases touching on that court only and their participation in clearing the backlog from other divisions was therefore illegal.

 “Our decision must of necessity have a similar effect on all the appeals that were determined by a similarly empanelled High Court benches,” the Supreme Court verdict reads.

Criminal appeals

The decision is a reprieve for those who lost their cases, both criminal and civil, as they now have a second chance before new benches.

While launching the Judiciary Service Week, former Chief justice Willy Mutunga said it would clear 1,500 criminal appeals and review the eligibility of 3,500 prisoners for Community Service Orders (CSO). Out of this, 400 cases were heard by mixed benches of judges.

The courts, established through a Gazette Notice in 2013, were to sit in two and single-judge benches. Some 800 cases were to be heard by the two-judge benches and 700 cases were to be heard by single judges. Each judge was to hear and determine 15 cases during that week.

With the cost of feeding an inmate at Sh175 daily, the service week was intended to save the taxpayer Sh223 million yearly if the 3,500 prisoners were set free or their jail terms substituted with community service.

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