[2004] KEHC 1001 (KLR)
The court found that the proceedings in the lower court were a nullity because the prosecution was conducted by an unqualified prosecutor, as established in ROY ELIREMA v REPUBLIC. Although the state requested a retrial and the appellant did not object, the court considered the evidence on record and the probation...
Source-derived case information.
- Citation
- [2004] KEHC 1001 (KLR)
- Parties
- Appellant: Boniface Mwanzia Kitavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 37 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant set at liberty
- Legal Topics
- Unqualified Prosecution, Possession of Narcotics, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Mwanzia Kitavi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the proceedings in the lower court were a nullity due to prosecution by an unqualified prosecutor.
- 2 Whether a retrial should be ordered after the conviction and sentence are set aside.
Ratio Decidendi
The court found that the proceedings in the lower court were a nullity because the prosecution was conducted by an unqualified prosecutor, as established in ROY ELIREMA v REPUBLIC. Although the state requested a retrial and the appellant did not object, the court considered the evidence on record and the probation officer's recommendation for a non-custodial sentence, noting that the appellant was a first offender and the sentence imposed was excessive. The court determined that ordering a retrial would be unfair and prejudicial to the appellant, who had already served one year of a five-year sentence. Consequently, the court declined to order a retrial and set the appellant at liberty...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant set at liberty
Orders
- The proceedings before the lower court are declared a nullity.
- The conviction is quashed and sentence set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS APPELLATE SIDE HIGH COURT CRIMINAL APPEAL 37 OF 2004
(From Original Conviction(s) and Sentence(s) in Criminal Case No 683 of 2003 of the Senior Resident Magistrate’s Court at Kangundo N. N. Njag i ( Esq.) on 3/11/03)
BONIFACE MWANZIA KITAVI :::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
Boniface Mwanzia Kitavi was convicted by Senior Resident Magistrate’s Court Kangundo for the offence of possession of bhang Contrary to Section 3 (1) as read with Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Act No. 4 of 1994. He was sentenced to five years imprisonment. He was aggrieved and filed this appeal.
When the matter came up for hearing, Mr O’Mirera the learned state counsel conceded the appeal on grounds that the lower court proceedings were conducted by PC Mbonge who is an unqualified prosecutor. It is now trite law that prosecution by an unqualified prosecutor renders the proceedings a nullity see ROY ELIREMA versus REPUBLIC Criminal Appeal 67/03 . The proceedings before the lower court are hereby declared a nullity, the conviction is quashed and sentence set aside.
The state urges the court to order a retrial. The appellant did not object to a retrial. The court will generally order a retrial if the trial in the lower court was illegal or defective. In ordering a retrial the court has to ensure that the trial will not prejudice the accused person.
Having scanned through the evidence on record, I do find that indeed in the event of a retrial the admissible evidence on record may result in a conviction. The exhibit was taken to the Government analyst and confirmed to be Cannabis Sativa. The appellant was arraigned in court on 29/8/03 and was sentenced to five years imprisonment on 3/11/03. So far he has served one year imprisonment leaving a balance of four years.
From the record, I have seen a report prepared by the Probation Officer who recommended a non custodial sentence since the appellant was found to be a first offender. I take note of the amount of Cannabis Sativa involved and in my view, the sentence was excessive in the circumstances and it would not be fair to hold the appellant any further by ordering a retrial which might take a long period. Accordingly, I decline to order a retrial and the appellant is set at liberty unless otherwise lawfully held.
Dated at Machakos this 15th day of December 2004
R.V. WENDOH
JUDGE