[2004] KEHC 2333 (KLR)
The court found that the prosecution was conducted by P.C. Makori, a police constable, who did not possess the requisite rank to prosecute under Section 85(2) of the Criminal Procedure Code. The court held that allowing a police officer below the rank of Assistant Inspector to prosecute defeats the purpose of the...
Source-derived case information.
- Citation
- [2004] KEHC 2333 (KLR)
- Parties
- Appellant: Ben Omanwa Nyangau alias Ombega; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 91 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Unqualified Prosecution, Criminal Procedure, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Omanwa Nyangau alias Ombega
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution was conducted by a qualified person as required by law.
- 2 Whether the conviction and sentence should stand if prosecution was conducted by an unqualified person.
Ratio Decidendi
The court found that the prosecution was conducted by P.C. Makori, a police constable, who did not possess the requisite rank to prosecute under Section 85(2) of the Criminal Procedure Code. The court held that allowing a police officer below the rank of Assistant Inspector to prosecute defeats the purpose of the statutory provision. As such, the entire prosecution was a nullity, and the resulting conviction and sentence could not stand. The court therefore quashed the conviction, set aside the sentence, and ordered the appellant's discharge. No retrial was ordered as the State did not apply for one and the appellants had already served three months in prison.
Court Disposition
appeal_allowed
Orders
- Conviction quashed.
- Sentence set aside.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.91 OF 2004(From original conviction and sentence of the Principal Magistrate’s Court at Nyamira in Criminal Case No. 481 of 2003 – P. M. MULWA ESQ., R.M)BEN OMANWA NYANGAU ALIAS OMBEGA …………. APPELLANT VERSUS REPUBLIC ………………………………………………….. RESPONDENTJUDGMENT
The appellant BEN OMANWA NYANGAU was convicted with three others by District Magistrate’s Nyamira on two counts of assault c/s. 251 Penal Code. Each was sentenced to 2 years imprisonment in each count. He has now appealed against both sentence and conviction.
Mr. Kemo the State Counsel conceded to the appeal and said it was conducted by an unqualified person. Prosecution is shown to have been conducted by a P. C. Makori. S.85 (2) C. P. C. States that only a police officer of a Rank of an Ass. Police Inspector may prosecute cases. Indeed P.C. Makori applied to be allowed to prosecute and the court allowed the application but that did not make him a qualified person to prosecute. S.85 (2) provides that as A.G. cannot appoint a person who is below the rank of a police officer of a rank below that of Ass. Inspector to prosecute. Likewise I think the court should also not allow such a person to prosecute for to do so is to defeat the spirit of that Section. When the act talks of any other person I believe it means any other person but not a police officer below that rank.
I therefore find that the prosecution was conducted by an unqualified person and was therefore a nullity. I quash the conviction and set aside the sentence. Accused is discharged.
As the State did not apply for retrial I will not order one. Appellants have already been in prison for 3 months.
It is so ordered.
KABURU BAUNIJUDGE.21/7/04