THE RIGHT OF THE STATE TO APPEAL AN ACQUITTAL IN KENYA

Samuel Kahura

Article 25 of the Constitution of Kenya, 2010 addresses the rights which are not subject to limitation. Notably, the right to a fair trial is among those rights. Article 50 then deals with the tenets of a fair trial. One of the most important of these safeguards is the right of an accused person if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. This paper is however aimed at looking at the opposite side of the coin which is the right of the State to appeal an acquittal. I shall examine two different scenarios:

a) An accused person is completely acquitted.

b) An accused person is convicted of a lesser offence by the court in exercise of its power under Section 179 of the Criminal Procedure Code.

Legal Framework for the State’s Appeal

Currently, the right of the state to appeal an acquittal is provided for under Section 19 of the Security Laws (Amendments) Act No 19 of 2014. The Section amended the Criminal Procedure Code CAP 75 Laws of Kenya by introducing a new Section 348A. It confers upon the DPP a right to appeal to the High Court or Court of Appeal from an acquittal or order on a matter of fact and law. If the appeal is successful subsection 2 states that the High Court or the Court of Appeal, as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.

Examining the Two Scenarios

On the first scenario, where an accused person is completely set at liberty, Section 348A of the Criminal Procedure Code is quite clear as being set at liberty fits squarely within the meaning of acquittal. The Court of Appeal in Republic v Danson Mgunya [2016] eKLR, where the High Court acquitted the accused of murder, the court rejected arguments that Section 348A amounts to a violation of the principle of double jeopardy and the Constitution. The Court of Appeal thus upheld the right of the DPP to appeal an acquittal.

The second situation is where an accused person is convicted of a lesser offence by the court in exercise of its power under Section 179 of the Criminal Procedure Code. For example, a person charged with murder is convicted of the lesser offence of manslaughter. In such a case a major problem arises. The problem is whether that amounts to acquittal. The Court of Appeal in I.P. Veronica Gitahi & Another v Republic [2017] eKLR, where the accused persons had been charged with murder contrary to Section 203 of the Penal Code but instead the High Court in invoking its power under Section 179 of the Criminal Procedure Code convicted them of the offence of manslaughter contrary to section 202 of the Penal Code CAP 63 Laws of Kenya. The Court of appeal in  I.P. Veronica Gitahi & Another v Republic [2017] eKLR rejected a cross appeal by the State. The court stated:

“To agree with the submissions by the State is to beg the question, how were the appellants acquitted and convicted at the same time in the same trial? And if the appellants were acquitted, how come they have preferred an appeal? Are they appealing against their acquittal? Can a conviction following invocation of section 179 be disaggregated into an acquittal for one offence and conviction for another?

Section 179 of the Criminal Procedure Code, which the learned judge invoked, is headed “Conviction for offences other than those charged.” Clearly when section 179 of the Criminal Procedure Code is successfully invoked, the result is a conviction rather than an acquittal.”

However, I disagree with the position that the State does not have the right to appeal where a person has been convicted by the court in exercise of its power under Section 179 of the Criminal Procedure Code. In a hypothetical case where the trial court misapplies a legal principle in examining the evidence and arrives at a conclusion that the prosecution has not proven the offence that they chose to charge the accused with and proceeds to convict the accused of a lesser cognate offence based on the error, would the State have the power to appeal?

Drawing from comparative law, Section 319 of South Africa’s Criminal Procedure Act No. 51 of 1977 provides for reservation of questions of law. Section 322 of the CPA prescribes the powers that may be exercised by a court of appeal hearing an appeal relating to any question of law reserved under section 319. Most importantly, section 322(4) provides that in an appeal by the prosecutor where a question of law has been reserved in the case of an acquittal, and the court of appeal has given a decision in favour of the prosecutor, the court of appeal may order that such of the steps referred to in Section 324 be taken as the court may direct.

The meaning of an acquittal under Section 322(4) has been interpreted on various occasions. In S v Seekoei 1982 (3) SA 97 (A), it was held that an accused who had been charged with housebreaking with intent to rob and robbery with aggravating circumstances, but convicted on the competent verdict of the lesser offence of housebreaking with intent to steal and theft with aggravating circumstances had not been ‘acquitted’. However, in Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204, where the respondent Oscar Pistorius had been charged with the offence of murder but convicted on the competent verdict of the offence of culpable homicide, the Supreme Court of Appeal allowed the reservation of questions of law. This is a clear case where the accused is not completely set at liberty but nonetheless is ‘acquitted’ of the charge of murder. This is the reading of the law that to me should be applied in interpretation of the meaning of acquittal under Section 348A of the Criminal Procedure Code.

Conclusion

From the foregoing, the State can only appeal in cases where there is total acquittal of the accused person. In cases where an accused person is convicted of a lesser offence the State has no such power. However, as I postulated above, I am of the opinion that such a conclusion is erroneous. Whether or not I am right remains a big question.