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Murder convict triggers change in criminal law

By Kamau Muthoni | December 1st 2020

High Court Judge Luka Kimaru

A murder convict, the late Stephen Nyakwaka will posthumously go into history books for triggering yet another landmark change of criminal law. 

Nyakwaka was put on death row after he was found guilty of killing Gilbert Nyangala in 2017 over a computer processing unit dispute. 

The convict had lodged a case, arguing that he was denied a chance to face off with his accusers when he was tried before the High Court.

Nyakwaka said if he was tried before the lower court, he would have had two more chances of filing an appeal against the State; before the High Court and Court of Appeal.

Since he died behind bars on July 26 before the conclusion of the case against the State, the Kenya National Commission on Human Rights and the Kenya Law Reform Commission, the matter would have been closed. However, the court ordered Nyakwaka to be replaced with another murder convict, Richard Nunda Nyaoke, to breathe life into the case.

High Court Judges Jessie Lessit, Luka Kimaru, and Kanyi Kimondo heard that it was discriminating for murder and treason convicts to be tried before the High Court while other capital offences such as robbery with violence were heard before lower courts.

The judges agreed with Nyakwaka and Nyaoke that although the High Court had unlimited powers to deal with criminal cases, there was no law or anything special that conferred that court powers to hear the two capital offences.

The judges said the High Court has remained as the first court to hear murder and treason trials due to the colonial master’s law, which required such cases be tried with the help of a jury.

In 1963, the jury system was abolished and replaced by assessors.

While being tried before a British court, the assessors would come in handy when giving a perspective of a case to culture, for example, witchcraft, which was foreign to the white judges, or they gave their understanding of customary law because judges were of English origin and did not know the African customs.

However, with the amendment of the criminal law in 2007, the assessors were removed. This followed judges’ frustrations when hearing murder trials with the help of assessors. 

The then Chief Justice Evan Gicheru led to the current regime after he recommended the assessors be removed. However, despite the change in law, Kenya retained her colonial master’s stand, this time with judges only hearing the cases.

According to the three judges, the High Court found itself trying murder and treason cases by a historical accident.

“It is therefore clear that the necessity of trying murder charges before the High Court was imposed by colonial expediency which spilled over to post-independence Kenya. Despite trials by jury being abolished in 1963, the trial of those charged with murder continued to be at the High Court with the aid of assessors,” the judges noted.

“We assert, with the benefit of history, that the fact that those charged with murder are still tried in the High Court is a historical accident without any legal justification or logic.”

They also found that it would be beneficial for murder trials to start at magistrates’ court as there are more than 447 magistrates compared to only 82 judges.

“Initiating murder trials at the magistrates’ courts will significantly lower the costs of the trial, reduce the distance to court and expedite delivery of justice,” they ruled.

The Attorney General and the Director of Public Prosecutions opposed the case, arguing that the fifth schedule had provided a solution to the problem by providing the High Court as a default court for criminal and treason cases.

According to the AG and DPP, the High Court has powers to try a murder suspect, adding that if the court found that magistrates should have such powers, then it would be against the Constitution.

They submitted that commencing murder trials before the High Court while other capital offences are before the Magistrates Court was not discriminatory.

The State argued that differentiation was not unique to the Kenyan legal system. The AG and DPP argued that the Kenyan system borrowed heavily from the British one where courts are organised in order according to the seriousness and nature of the matters they hear.

The court gave the State 18 months to rectify the law.

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