How judges are abetting miscarriage of justice

By APOLLO MBOYA

In Criminal Appeal Numbers 370 and 372 of 2010, the Court of Appeal ordered the re-hearing of two appeals by Ferdinand Indangasi Musee and Aggrey Rasto Wandei at the Mombasa High Court.

The appellants had challenged a death sentence handed to them by a lower court six years ago after they were found guilty of robbery with violence. Justice Hannah Okwengu, Justice Milton Makhandia and Justice Fatuma Sichale regretted that the judgement in the records of the appeal before them showed that only Justice Maureen Odero, who presided over the case with Justice Ibrahim, had signed the judgement after delivery.

According to the judges Court of Appeal, the omission to sign the judgment was fatal precluding them from considering the merits of the appeal because the judgement was irregular, improper and invalid.

This is not the first time that Court of Appeal has ordered a rehearing. In Criminal Appeal No.3 of 2013, Justices Mwera, Musinga and Gatembu, gave similar decision in the appeal by Peter Mwangi Waithaka.

Section 169 of Criminal Procedure Code directs as to the mode of delivering a judgment. Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.

Serious consequences

The requirement to date and sign a judgment is couched in mandatory terms using the word “shall.” Thus omitting to comply must have serious consequences.  According to Section 359(1) of the Criminal Procedure Code two judges of the High Court shall hear appeals from the subordinate courts, except when in any particular case the Chief Justice, or a judge to whom the Chief Justice has given authority in writing, directs that one judge of the High Court hear the appeal.

Ordinarily, a rehearing can be made where the interests of justice require it, and if it is unlikely to cause injustice to the appellant.  Other factors for consideration include illegalities or defects in the proceedings; the length of time having elapsed since the arrest and arraignment of the appellant; and whether mistakes leading to the quashing of the conviction were entirely of the prosecutions making or not.

There are other possible factors upon which a rehearing may be ordered but each case should always be considered on its own merits because of peculiar circumstances to serve the best interests of justice.

But does this mean that if an accused has won an acquittal in a fair and suitably error-free trial, the accused may, if the prosecution appeals, nonetheless be compelled to go through a rehearing for the same offense and be held in custody because one of the two judicial officers by either human error or design fails to sign the judgment?

Once the hearing is complete, the accused is already in jeopardy regardless whether one of the Judges did not sign the Judgment. Jeopardy begins with a charge and ends with a suitably error-free verdict. This principle is not freestanding, but must be supplemented by several broader and more flexible commonsense principles protected by the due process and by certain other rules and principles rooted in criminal justice system.

At common law, the logic behind double jeopardy principle rule is simple. If an accused has already been convicted or acquitted of an offence in a fair trial that has rendered a final judgment, it is not right to try to heap a second punishment upon the accused in a second trial for what was after all only a single legal offense.

The double jeopardy principle (autrefois convict) protects even the guilty. But the principle is more precious for its protection of the innocent, (autrefois acquit).

As a result of the decisions of the Court of Appeal, some accused persons today are getting windfalls of rehearing, while others are getting less than they constitutionally deserve because of delays of their trials and appeals.

I am unable to say whether the failure to sign the judgment was by human error or it was done by some mischievous design.

I say no more on this and do not wish to speculate. 

However, to ensure justice is served, it is fair that before a case is remitted to the High Court for rehearing, the circumstances of the appellant, interest of the victims and the society at large is taken into account to ensure that the rehearing is the viable option.

It is also fair to the justice system that judicial officers sign a judgment they participated in crafting.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke