[2004] KEHC 775 (KLR)
The court found that the prosecution in the lower court was conducted by a police corporal, who was not qualified to prosecute under the law. Following the precedent set in THOMAS OGAMBA NYAKUNDI & ANOTHER v REPUBLIC, any trial prosecuted by an unqualified person is a nullity. Consequently, the convictions and...
Source-derived case information.
- Citation
- [2004] KEHC 775 (KLR)
- Parties
- Appellant: Annah Bosire; Appellant: Margaret Moraa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 310 & 311 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; appellants set at liberty
- Legal Topics
- Criminal Procedure, Unqualified Prosecution, Possession of Narcotics, Possession of Illicit Liquor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annah Bosire
Appellant
Margaret Moraa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution of the appellants by a police corporal rendered the trial a nullity.
- 2 Whether the convictions and sentences based on such a trial could stand.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by a police corporal, who was not qualified to prosecute under the law. Following the precedent set in THOMAS OGAMBA NYAKUNDI & ANOTHER v REPUBLIC, any trial prosecuted by an unqualified person is a nullity. Consequently, the convictions and sentences imposed on the appellants could not stand, and the appeal was allowed. The appellants were set at liberty as the entire trial was void ab initio due to the procedural defect.
Court Disposition
appeal allowed; convictions quashed; appellants set at liberty
Orders
- The appeal is allowed.
- The convictions are quashed.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO.310 & 311 OF 2003 (From original conviction and sentence of the RM’s court at Keroka in criminal case No.420 of 2003. ) ANNAH BOSIRE ) ……………………………………………. APPELLANTS MARGARET MORAA ) VERSUS REPUBLIC …………………………………………………………….. RESPONDENT JUDGMENT:
Appeals KISII HCCRAPP. NO.310 and 311 of 2003 were consolidated. Both appellant were convicted on two charges. The first of being in possession of bhang and the 2nd being in possession of 20 litres of changaa. They were convicted by District Magistrate Keroka and sentenced to one year imprisonment on each count.
The learned state counsel conceded to the appeal and told court that the prosecution was partly conducted by a police corporal.
Indeed that was so. Records shows that on 10th September 2003 prosecution was conducted by one corporal Ochieng. Two witnesses were heard on that day. In the case of THOMAS OGAMBA NYAKUNDI & ANOTHER –VS.- R. C.A. CR.C. NO.217 of 2003 the Court of Appeal held that trial of appellants by a police constable was a nullity.
In this case too the trial in the lower court was a nullity as the prosecutor was unqualified.
The appeal is therefore allowed and the appellants set at liberty.
Delivered on 22nd June 2004.
KABURU BAUNI JUDGE 22/6/04