[2004] KEHC 1379 (KLR)
The court found that the prosecution in the lower court was partly conducted by a police corporal who was not a competent public prosecutor as required by Section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the conviction unsafe. However, given the seriousness of the offence, the...
Source-derived case information.
- Citation
- [2004] KEHC 1379 (KLR)
- Parties
- Appellant: Abdulrahaman Hwawazi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 327 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; conviction quashed; retrial ordered.
- Legal Topics
- Defilement, Prosecutorial Irregularity, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulrahaman Hwawazi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the prosecution was conducted by a competent public prosecutor as required by law.
- 2 Whether the irregularity in prosecution warranted quashing the conviction and ordering a retrial.
- 3 Whether a retrial would prejudice the appellant or violate his rights.
Ratio Decidendi
The court found that the prosecution in the lower court was partly conducted by a police corporal who was not a competent public prosecutor as required by Section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the conviction unsafe. However, given the seriousness of the offence, the availability of witnesses, and the sufficiency of the evidence to potentially sustain a conviction, the court determined that a retrial was appropriate. The court also considered whether a retrial would prejudice the appellant and concluded that it would not, as the appellant had only served about two years of his sentence and the witnesses were available. Therefore, the appeal was...
Court Disposition
Appeal allowed; conviction quashed; retrial ordered.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
H.C.CR. APPEAL NO.327 OF 2002
ABDULRAHAMAN HWAWAZI ……………………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………………… RESPONDENT
(Being an appeal from Original Criminal Conviction and sentence in Crim inal Case No.262 of 2002 of the Chief Magistrate's Court at Mombasa – J.S. Mushelle, SPM)
Coram: Before Hon. Justice Mwera Miss Mwaniki for the State Appellant in person present Court clerk - Sango
JUDGEMENT
In the lower court the appellant was charged under S.145 (1) Penal Code in that on 18-1-2002 at [particulars witheld] area Mombasa he had carnal knowledge of HA a girl under the age of 14 years. He was tried, found guilty, convicted and sentenced to serve 8 years imprisonment with hard labour plus 4 strokes of the cane.
The appellant appealed on 5 grounds, on 5-8-2002.
When the appeal came up for hearing on 6-9-2004, the learned State Counsel conceded it on the basis that at one point a Cpl. Mwamburi did lead the prosecution case contrary to the provisions of S.85 (2) Criminal Procedure Code in that he was not a competent public prosecutor, him not being of the rank of Assistant Inspector of Police thinks that concession was right.
The learned State Counsel however pressed for a retrial of the appellant saying that the offence was serious and the evidence in the lower court is such as can and should sustain a conviction. That the appellant has served only about 2 years of the sentence. That the witnesses who reside in Mombasa will be made available to testify once again, just as it was previously, and not with a view to seal loopholes in the prosecution case if any. That thus the appellant would not be prejudiced.
The appellant on his part pleaded that a retrial would prejudice him and that he has been in prison for long. He wanted the whole thing done with now.
It is not automatic that every case where a retrial is sought, it should be ordered as a matter of course. Each case is considered on its own and it is imperative to guard against any breach of the accused rights. There is also the issue of the potential evidence if it can or cannot secure a conviction. And if the evidence can be presented once again and so on and so forth.
The offence of defilement is serious. It was partly presented to the learned trial magistrate by a police corporal contrary to law. The appellant had nothing to do with this, of course. But having gone over the evidence of the complainant (PW.4), her mother S. (PW.2) plus neighbours and that of Dr Peter Mwamure (PW.6), this court is satisfied their evidence may lead to a conviction after a retrial.
In sum the appeal is allowed but a retrial is ordered. The appellant to be presented before a competent court within next 14 days. To remain in custody for now.
Judgment delivered on 20th September, 2004.
J.W. MWERA
JUDGE