[2006] KEHC 1631 (KLR)
The court found that the omission of the court coram at the first hearing was a fatal procedural defect, rendering the entire proceedings a nullity. Consequently, the conviction and sentence could not stand. Although the evidence established that an offence had been committed, it did not support the charge of...
Source-derived case information.
- Citation
- [2006] KEHC 1631 (KLR)
- Parties
- Appellant: Caleb Otieno alias Mustafa Otieno Karim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1254 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- CJ Kendagor, MC Kesse
- Legal Topics
- Robbery With Violence, Coram Omission, Retrial Principles, Theft From Person
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Otieno alias Mustafa Otieno Karim
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omission of the court coram during the first hearing rendered the proceedings a nullity.
- 2 Whether a retrial should be ordered given the defect in the original proceedings and the nature of the evidence.
Ratio Decidendi
The court found that the omission of the court coram at the first hearing was a fatal procedural defect, rendering the entire proceedings a nullity. Consequently, the conviction and sentence could not stand. Although the evidence established that an offence had been committed, it did not support the charge of robbery with violence but rather theft from person. Given the appellant's prolonged incarceration and the lack of evidence to sustain a conviction for the original charge, the court held that ordering a retrial would be unjust and prejudicial to the appellant. The interests of justice required that the appellant be set at liberty.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed and the sentence set aside.
- The appellant is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 1254 of 2002
(From original conviction(s) and Sentence(s) in Criminal Case No. 6266 of 2001 of the
Chief Magistrate’s Court at Makadara (Mrs. Kimingi – PM.)
CALEB OTIENO alias MUSTAFA OTIENO KARIM…................................................APPELLANT
VERSUS
REPUBLIC……………………........................................…………………………....RESPONDENT
J U D G M E N T
CALEB OTIENOalias MUSTAFA OTIENO KARIM was charged with one count of ROBBERY WITH VIOLENCE contrary to Section 296(1) of the Penal Code. It was alleged that in company with another not before court he robbed the Complainant of his cash and mobile phone and that they used actual violence on him. The Appellant was found guilty, convicted and sentenced to death. It is out of the said conviction that he now appeals before this court.
When this appeal came up for hearing, MISS GATERU learned counsel for the State conceded to it citing a technicality that on 9th May 2002, when the case was first heard, the Coram of the court was not indicated as required. Learned counsel submitted that consequently the appeal court had no way of determining whether Section 85(1) as read with Section 89 of the Criminal Procedure Code had been complied with.
We have perused the record of the proceedings and we have confirmed that the Court Coram was not indicated during the first hearing of this case. The court of appeal, while dealing with a similar issue in the case of BERNARD LOLIMA EKIMAT & ANOTHER vs. REPUBLIC CA No. 151 of 2004, found that where the Coram of the court was not indicated during the hearing of the case then the proceedings were rendered defective since the Appellate Court had no way of determining whether there was any prosecutor in court and if there was any, whether he was qualified as required under the Criminal Procedure Code. We are bound by the said decision. Consequently we find the proceedings were a nullity, quash the conviction and set aside the sentence.
MISS GATERU urged us to order a retrial in order to meet the ends of justice due to the seriousness of the charge. That was opposed by the Appellant who urged the Court to find that the five years he had been in custody since his arrest in this matter was sufficient punishment and further that he was not to blame for the mistake which occurred.
We have carefully considered the evidence on record in this case. We find that the evidence against the Appellant clearly established an offence had been committed by the Appellant against the Complainant. However, the offence committed was not the one charged of ROBBERY WITH VIOLENCE. The offence was committed by unnamed persons who merely held the Complainant and took his mobile phone and cash from his pockets. That evidence does clearly support a charge of THEFT FROM PERSONcontrary toSection 279(b)of thePenal Code. We find that even if we were to order a retrial, it would not be for the offence the Appellant faced before the lower court. We are satisfied that the evidence on record in this case would not result in a conviction for the offence charged were we to order a retrial on that ground alone. The order for retrial cannot be made in the circumstances. See MWANGI vs. REPUBLIC 1983 KLR 522.
The Appellant has been in prison custody since his arrest in March 2001. That is a period of five years and two months now. Taking the period of his incarceration into account, together with our observation concerning the offence committed, we find that the interests of justice would not require an order for retrial being made. We find that such an order would cause the Appellant to suffer prejudice. See MANJI vs. REPUBLIC, SUMAR vs. REPUBLIC 1964 EA 481.
We decline to order a retrial. We direct that the Appellant be set at liberty unless he is otherwise lawfully held.
Dated at Nairobi this 9th day of May 2006.
………………………
LESIIT, J.
JUDGE
………………………….
MAKHANDIA, M.
JUDGE
Read, signed and delivered in the presence of;
Appellant present
Miss Gateru for the State
Ann Wambui - CC
………………………
LESIIT, J.
JUDGE
………………………….
MAKHANDIA, M.
JUDGE