[2004] KEHC 287 (KLR)
The trial magistrate erred by imposing a sentence of 12 months imprisonment, which exceeded the statutory maximum of 6 months for the offence of creating disturbance. Additionally, the prosecution was conducted by a police officer below the rank of inspector, contrary to Section 85(2) of the Criminal Procedure Code....
Source-derived case information.
- Citation
- [2004] KEHC 287 (KLR)
- Parties
- Appellant: Albanus Ongoto Mwencha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 14 of 2002
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- conviction quashed and sentence set aside
- Judges
- JK Sergon
- Legal Topics
- Unlawful Sentence, Improper Prosecution, Criminal Revision, Trial Nullity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albanus Ongoto Mwencha
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed exceeded the statutory maximum for the offence of creating disturbance.
- 2 Whether the prosecution was conducted by a legally authorized officer under the Criminal Procedure Code.
- 3 Whether the trial was a nullity due to improper prosecution.
Ratio Decidendi
The trial magistrate erred by imposing a sentence of 12 months imprisonment, which exceeded the statutory maximum of 6 months for the offence of creating disturbance. Additionally, the prosecution was conducted by a police officer below the rank of inspector, contrary to Section 85(2) of the Criminal Procedure Code. The Court of Appeal has held that such trials are nullities. Therefore, the trial was incompetent, and the conviction and sentence could not stand. The court exercised its revisionary jurisdiction to quash the conviction and set aside the sentence.
Court Disposition
conviction quashed and sentence set aside
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL REVISION NO. 14 OF 2002
ALBANUS ONGOTO MWENCHA…….........................……………..……..ACCUSED
VERSUS
REPUBLIC………………………….......................……………………PROSECUTOR
RULING ON REVISION
The subject in this revision was tried for and convicted for the offence of creating disturbance contrary to Section 95 (1) (b) of the Penal Code. He was sentenced to pay a fine of Ksh. 20,000/= and in default to serve 12 months imprisonment. This matter was then placed before this court pursuant to Sections 362 and 365 of the criminal procedure code.
The reference points out that the sentence was excessive and unlawful thus this court was urged to exercise its discretion to correct the error manifested in the Judgment.
I have perused the record of the trial court. I have also examined the provisions of Section 95 (1) (b) of the Penal Code. The law under the above mentioned section sets the maximum sentence to be imposed to be 6 months imprisonment. It is clear that the trial magistrate erred in meting out a sentence of 12 months imprisonment which is not provided by law. The record reveals that the subject was a first offender. The fine imposed of Ksh.20,000/= appears to be excessive.
The record shows that the prosecution’s case was conducted by corporal Nyongesa. The law under Section 85 (2) of the criminal procedure code does not authorize police officers below the rank of an inspector to prosecute criminal cases. The court of appeal in the case of ROY RICHARD ELIREMA & ANOTHER VS REPUBLIC CR. APPEAL NO. 67 OF 2002 ruled that such a trial is a nullity.
Consequently I am not satisfied that there was a competent trial before the Senior Resident magistrate’s court. The conviction is therefore quashed and sentence set aside.
DATED AND DELIVERED THIS 20th DAY OF September 2004
J.K. SERGON
JUDGE