[2006] KEHC 2140 (KLR)
The court found that the prosecution in the lower court was conducted by Police Constable Ihaji, who was not qualified under Section 85(2) of the Criminal Procedure Code to act as a public prosecutor. This fundamental procedural flaw rendered the entire trial a nullity. The conviction and sentence were therefore...
Source-derived case information.
- Citation
- [2006] KEHC 2140 (KLR)
- Parties
- Appellant: David Chepkwony Cheruiyot; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 67 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Stock Theft, Unqualified Prosecutor, Nullity of Trial, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Chepkwony Cheruiyot
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution was conducted by a qualified prosecutor as required by law.
- 2 Whether the conviction and sentence are valid in light of the prosecution's qualifications.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by Police Constable Ihaji, who was not qualified under Section 85(2) of the Criminal Procedure Code to act as a public prosecutor. This fundamental procedural flaw rendered the entire trial a nullity. The conviction and sentence were therefore quashed and set aside, as the proceedings were invalid from the outset due to the lack of a qualified prosecutor.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Criminal Appeal 67 of 2004
(From Original Conviction and Sentence in Criminal Case No. 278 of 2003 of the Principal Magistrate’s Court at Kericho – S.M. Githinji - S.R.M)
DAVID CHEPKWONY CHERUIYOT …….........................................................… APPELLANT
VERSUS
REPUBLIC ………………….…................................................……………….RESPONDENT
JUDGMENT
The appellant, David Chepkwony Cheruiyot was charged before the Senior Resident Magistrate’s court at Kericho with the offence of stock theft contrary to Section 278 of the Penal Code.
After a full trial, the appellant was found guilty, convicted and fined Kshs.6,000/- and in default to serve eight (8) months imprisonment. The appellant being dissatisfied with the conviction and sentence has appealed to this court and raised several grounds of appeal.
During the hearing of this appeal, Mr Koech, the learned Senior State Counsel conceded that the records of the lower court clearly show that the prosecution was conducted by an unqualified prosecutor. Thus the conviction and sentence is null and void. The records of the lower court clearly show that the prosecution of this case was undertaken by Police Constable Ihaji on 14th May 2003, 19th May 2003 and 6th June 2003 when all the prosecution witnesses gave evidence.
The issue regarding the conduct of prosecution by a police officer below the rank of assistant inspector was settled by the Court of Appeal in several decisions. See the case of Elirema & Another VS Republic 2003 KLR page 537 where the Court of Appeal heard that:
“Public prosecutors however, must meet the requirements set out in Section 85 of the Criminal Procedure Code….
“The provisions of Section 85 (2) of the Criminal Procedure Codeare that; to be appointed a public prosecutor, one must be either an advocate of the High Court or a person employed in the Public Service. In the case of a person employed in the Public Service that person ought to be a police officer not below the rank of an assistant inspector of police.”
In view of this fundamental flaw in the prosecution of the case by Police Constable Ihaji, the trial of the appellant must be declared a nullity.
The appeal herein is allowed with the result that the conviction recorded is quashed and the sentence set aside.
It is so ordered.
Judgment read and signed on 12th May 2006.
MARTHA KOOME
JUDGE