[2004] KEHC 215 (KLR)
The court found that the trial was a nullity because it was conducted before a magistrate who lacked jurisdiction to try the offence charged and was prosecuted by a person not authorized under Section 85 of the Criminal Procedure Code. These procedural errors were attributable to the State, not the accused. The...
Source-derived case information.
- Citation
- [2004] KEHC 215 (KLR)
- Parties
- Appellant: Ali Shaban; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 359 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; retrial refused; appellant to be released unless otherwise lawfully held
- Legal Topics
- Jurisdiction of Magistrate, Unauthorized Prosecutor, Nullity of Trial, Right to Liberty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Shaban
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial was a nullity due to lack of jurisdiction of the magistrate.
- 2 Whether the prosecution was conducted by an unauthorized person under Section 85 of the Criminal Procedure Code.
- 3 Whether a retrial should be ordered after the appellant spent 2.5 years in custody.
Ratio Decidendi
The court found that the trial was a nullity because it was conducted before a magistrate who lacked jurisdiction to try the offence charged and was prosecuted by a person not authorized under Section 85 of the Criminal Procedure Code. These procedural errors were attributable to the State, not the accused. The court held that it would be unjust to order a retrial after the appellant had already spent approximately 2.5 years in custody, as this would further infringe upon his constitutional right to liberty. The court emphasized that the accused should not be penalized for the State's procedural omissions and that the Constitution requires that a person charged with a criminal offence be...
Court Disposition
appeal allowed; conviction quashed; retrial refused; appellant to be released unless otherwise lawfully held
Orders
- The appellant's appeal is allowed.
- The trial is declared a nullity.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL 359 OF 2002 ALI SHABAN ………………...………………………………….……… APPELLANT
-V E R S U S –
REPUBLIC …………………………..………………………………… RESPONDENT
(From the Original Conviction and sentence in Criminal Case no. 898 of 2002 of the Chief Magistrate’s Court at Mombasa)
J U D G M E N T
The appellants appeal has been conceded by State. The, State Counsel does not oppose the Petition of Appeal. Her main reasons is that the trial was before a Magistrate with no jurisdiction to try the offence charged (296 (1)). Also the prosecutor was a Corporal not authorized to prosecute cases under Section 85 of CPC. I, therefore, declare that trial a nullity. I also allow the appellant’s appeal. The State now seeks a retrial.
I have heard submissions of both Counsel. The issue of complying with the procedural rules regarding trial and prosecution is set out in the CPC. The state should have placed the charge before the correct trial court. The State should have organized for the trial to be conducted by a prosecutor authorized under Section 85 CPC. These are omissions by the State Law Office. It is quite unjust to penalize the accused person for faults which are committed by the State Law Office. The accused has spent about 2 ½ years in custody during which period the trial proceeded. I do not think it is just to allow him to undergo a similar or longer period in jail awaiting a trial on similar grounds. Our Constitution guarantees liberty to all person and where the liberty of a person is denied on the ground that he is charged with a criminal offence, he shall be tried within a reasonably practicable period.
In the circumstances of this case it is my view that to order a retrial is against the human right to liberty granted by the Constitution. I reject the prayer for retrial. I, therefore, allow the appellant appeal and order that he be set free at once unless otherwise lawfully held.
Dated this 1st day of November, 2004.
J.KHAMINWA
JUDGE