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(Being an Appeal against conviction and sentence in a case of Robbery with Violence Contrary to Section 295 as read together with Section 296 of the Penal Code in Kilungu Magistrates Courts Criminal Case No. E184 of 2021 – Judgment delivered on 27 th May, 2022 by Hon. E.M. Muiru, Principal Magistrate)
The Appellant was charged with the offence of robbery with violence contrary to Section 295 as read together with Section 296 of the Penal Code.
The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called four witnesses, and the Appellant was put on his defence, during which he testified.
At the close of the trial, the trial Court found the Appellant guilty and sentenced him to death.
Dissatisfied with the conviction and sentence, he lodged a petition of appeal, later asking the Court to substitute the grounds in the first petition with the following grounds: I. That the trial court erred in law for failing to observe the death sentence imposed against him as unconstitutional, as it contravened Article 25(a), 28, 29 of the Constitution. II. That the trial court erred in law for failing to observe there was a constitutional unfairness in the appellant’s trial concerning the right to legal representation, thereby contravening Article 50 (2) (h) of the Constitution and Section 43 (1) of the Legal Aid Act. III. That the trial court erred in law in failing to observe that he was denied the benefits of the role of mitigation, thereby contravening Sections 216 and 329 of the Criminal Procedure Code.
The Appellant submitted on the grounds. He argued that his conviction and sentence should be overturned because he did not receive a fair trial. He stated that he had no legal representation, was not given the chance to present a case for mitigation, and that his sentence of death was excessively severe.
The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that the trial Court acted within the bounds of the law and that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Analysis and determination
The issues for determination are as follows; I. Whether the appellant was afforded a fair trial; II. Whether the conviction was safe; III. Whether the sentence was appropriate.
It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. ( See Pandya vs. Republic (1957) EA 336 ).
The Appellant was charged with a felony. During a routine mention of the case, it was directed that the appellant be provided with an advocate at the expense of the state. This order was made on 6 th December, 2021 after three witnesses had testified. However, I have reviewed the record, and this issue was not addressed after the order; at the next hearing, the appellant appeared in person until the case concluded.
There is nothing on the record that the right to legal representation was explained to the appellant at the time of plea or even during the proceedings.
I have reviewed the testimonies of the witnesses who had testified before the learned magistrate issued the order for legal representation. I also noted the explicit directive for legal representation to be provided. On the next mention, the Appellant was absent. The purpose of the mention on that 21 st December, 2025, was to confirm the availability of an advocate.
The right to legal representation in Kenya is a fundamental aspect of the right to a fair trial, guaranteed under Article 50 (2) of the Constitution of Kenya, 2010 . From the wording of Article 50 (2) (h), the right therein is not absolute, as the court must first satisfy itself that substantial injustice may result before it enforces the right. Therefore, the court believes that the learned magistrate’s order was made with due consideration, and there is no reason for this court to interfere with that exercised discretion.
A court before whom an unrepresented accused person is arraigned carries the important constitutional responsibility of promptly informing them of their right to select and be represented by an advocate. When the court issues an order requiring an advocate to be provided at the state’s expense, it is imperative that the court actively ensures compliance with that order. (See Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice another Office of the Director of Public Prosecutions & another (Interested Parties) 2021KEHC4855(KLR). Additionally, the court should explore alternative arrangements for the accused to ensure their right to legal representation is secured before any further proceedings take place.
There was no compliance with the order for legal representation at the expense of the state, nor were any alternative arrangements provided or communicated to the appellant. Additionally, no caution was given to the appellant. The error lay with the court, resulting in an unfair trial.
The Appellant took a further issue that he was not accorded an opportunity to mitigate, and on the validity of the sentence imposed. In view of the preceding paragraphs, dealing with these other grounds of appeal will not add any value.
The Appellant was not afforded a fair trial, and the conviction was not safe.
This Court is of the considered view that the ends of justice will be served by an order of retrial instead of discharging the Appellant.
Consequently, the appeal is allowed and the conviction quashed. The sentence is hereby set aside, and the Appellant will be released into police custody (Kilungu Police and Nunguni Police Post are referenced in the Charge Sheet Police, Police Case No. CR:434/111/2021) and be produced before a Court competent to try him, except the learned trial magistrate who presided over the previous proceedings. This should be in the next 7 days of this Judgment.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17 th Day day of November 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Mr. Kazungu, ODPP
'
(Being an Appeal against conviction and sentence in a case of Robbery with Violence Contrary to Section 295 as read together with Section 296 of the Penal Code in Kilungu Magistrates Courts Criminal Case No. E184 of 2021 – Judgment delivered on 27 th May, 2022 by Hon. E.M. Muiru, Principal Magistrate)
The Appellant was charged with the offence of robbery with violence contrary to Section 295 as read together with Section 296 of the Penal Code.
The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called four witnesses, and the Appellant was put on his defence, during which he testified.
At the close of the trial, the trial Court found the Appellant guilty and sentenced him to death.
Dissatisfied with the conviction and sentence, he lodged a petition of appeal, later asking the Court to substitute the grounds in the first petition with the following grounds: I. That the trial court erred in law for failing to observe the death sentence imposed against him as unconstitutional, as it contravened Article 25(a), 28, 29 of the Constitution. II. That the trial court erred in law for failing to observe there was a constitutional unfairness in the appellant’s trial concerning the right to legal representation, thereby contravening Article 50 (2) (h) of the Constitution and Section 43 (1) of the Legal Aid Act. III. That the trial court erred in law in failing to observe that he was denied the benefits of the role of mitigation, thereby contravening Sections 216 and 329 of the Criminal Procedure Code.
The Appellant submitted on the grounds. He argued that his conviction and sentence should be overturned because he did not receive a fair trial. He stated that he had no legal representation, was not given the chance to present a case for mitigation, and that his sentence of death was excessively severe.
The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that the trial Court acted within the bounds of the law and that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Analysis and determination
The issues for determination are as follows; I. Whether the appellant was afforded a fair trial; II. Whether the conviction was safe; III. Whether the sentence was appropriate.
It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. ( See Pandya vs. Republic (1957) EA 336 ).
The Appellant was charged with a felony. During a routine mention of the case, it was directed that the appellant be provided with an advocate at the expense of the state. This order was made on 6 th December, 2021 after three witnesses had testified. However, I have reviewed the record, and this issue was not addressed after the order; at the next hearing, the appellant appeared in person until the case concluded.
There is nothing on the record that the right to legal representation was explained to the appellant at the time of plea or even during the proceedings.
I have reviewed the testimonies of the witnesses who had testified before the learned magistrate issued the order for legal representation. I also noted the explicit directive for legal representation to be provided. On the next mention, the Appellant was absent. The purpose of the mention on that 21 st December, 2025, was to confirm the availability of an advocate.
The right to legal representation in Kenya is a fundamental aspect of the right to a fair trial, guaranteed under Article 50 (2) of the Constitution of Kenya, 2010 . From the wording of Article 50 (2) (h), the right therein is not absolute, as the court must first satisfy itself that substantial injustice may result before it enforces the right. Therefore, the court believes that the learned magistrate’s order was made with due consideration, and there is no reason for this court to interfere with that exercised discretion.
A court before whom an unrepresented accused person is arraigned carries the important constitutional responsibility of promptly informing them of their right to select and be represented by an advocate. When the court issues an order requiring an advocate to be provided at the state’s expense, it is imperative that the court actively ensures compliance with that order. (See Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice another Office of the Director of Public Prosecutions & another (Interested Parties) 2021KEHC4855(KLR). Additionally, the court should explore alternative arrangements for the accused to ensure their right to legal representation is secured before any further proceedings take place.
There was no compliance with the order for legal representation at the expense of the state, nor were any alternative arrangements provided or communicated to the appellant. Additionally, no caution was given to the appellant. The error lay with the court, resulting in an unfair trial.
The Appellant took a further issue that he was not accorded an opportunity to mitigate, and on the validity of the sentence imposed. In view of the preceding paragraphs, dealing with these other grounds of appeal will not add any value.
The Appellant was not afforded a fair trial, and the conviction was not safe.
This Court is of the considered view that the ends of justice will be served by an order of retrial instead of discharging the Appellant.
Consequently, the appeal is allowed and the conviction quashed. The sentence is hereby set aside, and the Appellant will be released into police custody (Kilungu Police and Nunguni Police Post are referenced in the Charge Sheet Police, Police Case No. CR:434/111/2021) and be produced before a Court competent to try him, except the learned trial magistrate who presided over the previous proceedings. This should be in the next 7 days of this Judgment.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17 th Day day of November 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Mr. Kazungu, ODPP
'