[2004] KEHC 1502 (KLR)
The court found that the trial in the lower court was prosecuted by a police constable who was not an authorized prosecutor under Section 85 of the Criminal Procedure Code. This procedural irregularity rendered the entire trial a nullity. Given that the appellants had already served part of their sentences and had...
Source-derived case information.
- Citation
- [2004] KEHC 1502 (KLR)
- Parties
- Appellant: Karuku Dume; Appellant: Ramadhani Njana Tsuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 310&311; of 2003
- Procedural Posture
- Criminal Appeal / Judgment on Consolidated Appeals
- Outcome
- appeal allowed; conviction and sentence quashed; no retrial ordered
- Legal Topics
- Unauthorized Prosecution, Nullity of Trial, Section 85 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karuku Dume
Appellant
Ramadhani Njana Tsuma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Consolidated Appeals
Legal Issues
- 1 Whether the prosecution of the appellants by a police constable, contrary to Section 85 of the Criminal Procedure Code, rendered the trial a nullity.
- 2 Whether a retrial should be ordered given the appellants' release under Presidential Amnesty and the time already served.
Ratio Decidendi
The court found that the trial in the lower court was prosecuted by a police constable who was not an authorized prosecutor under Section 85 of the Criminal Procedure Code. This procedural irregularity rendered the entire trial a nullity. Given that the appellants had already served part of their sentences and had been released under Presidential Amnesty, the court determined that ordering a retrial would be unjust. The court therefore allowed the appeal and declined to order a retrial, recognizing both the procedural defect and the fact that the appellants had already suffered punishment.
Court Disposition
appeal allowed; conviction and sentence quashed; no retrial ordered
Orders
- The appeal is allowed.
- The convictions and sentences are quashed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 311 OF 2003
(From Original Conviction and Sentence in Criminal Case No.77 of 2003 of the Resident
Magistrate’s Court at Kaloleni –C. Obulutsa, Esq –R.M.) KARUKU DUME………………………………...……… APPELLANTV E R S U SREPUBLIC…………………………………………………RESPONDENT CONSOLIDATED WITHCRIMINAL APPEAL NO.310 OF 2003RAMADHANI NJANA TSUMA…………………………..APPELLANTV E R S U S
REPUBLIC………………………………………………..RESPONDENT
9/2/2004
Before: Khaminwa, J.
Chege –Court Clerk
Ms Mwaniki –State Counsel
Mr. Nyaga –for Appellant
Ms Mwaniki
I apply for the Appeal (1) 310
(2) 311
to be consolidated. They arose from one trial.
Mr. Nyaga: No objection.
Court
Consolidation order is granted as prayed.
JOYCE KHAMINWA, J.
Mr. Nyaga
I wish to argue only ground No.(1) in the Petition. The matters were prosecuted by Police Constable - Pc. Mukonesi and contrary to Section 85 Criminal Procedure Code. The proceedings are a nullity. I ask the court to allow appeal. The Appellants have already served 5 months of jail term and they have been released on Presidential Amnesty. Ms Mwaniki.
I concede appeal. The Prosecutor was unauthorized. Sentenced to 12 months imprisonment. Offence of serious nature. The Appellant has served only 5 months. COURT
The Appellants are already released under Presidential Amnesty. This court cannot override the Presidential Order on exercise of his mercy. Again, the trial in the lower court was prosecuted by a Police Constable who was not an authorized prosecutor under Section 85 Criminal Procedure Code which makes the trial a nullity. It can not be said that the Appellants have not suffered punishment. They were arrested on 27/1/03 and in Cr.A.310/03 was released on 23/12/03 and in Cr. A.311/03 on 22/12/03.
In the circumstances no retrial can be ordered as it would be unjust to the Appellant.
The appeal is therefore allowed.
Dated at Mombasa this 9th day of February, 2004.
JOYCE KHAMINWAJ U D G E