[2007] KEHC 1479 (KLR)
The court found that part of the prosecution in the trial court was conducted by an unqualified police prosecutor, in violation of section 85(2) as read with section 88 of the Criminal Procedure Code. This rendered the entire proceedings a nullity. Although the evidence could potentially support a conviction if a...
Source-derived case information.
- Citation
- [2007] KEHC 1479 (KLR)
- Parties
- Appellant: David Kimemia Njuguna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 66 of 2004
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction and sentence set aside; appellant released; no retrial ordered
- Judges
- MSA Makhandia
- Legal Topics
- Manslaughter, Unqualified Prosecutor, Nullity of Proceedings, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kimemia Njuguna
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the proceedings in the trial court were a nullity due to prosecution by an unqualified police prosecutor.
- 2 Whether a retrial should be ordered after setting aside the conviction and sentence.
Ratio Decidendi
The court found that part of the prosecution in the trial court was conducted by an unqualified police prosecutor, in violation of section 85(2) as read with section 88 of the Criminal Procedure Code. This rendered the entire proceedings a nullity. Although the evidence could potentially support a conviction if a retrial were ordered, the appellant had already served a substantial portion of the sentence, and a retrial would likely cause prejudice and injustice. There was also no assurance that witnesses would be available for a retrial, and the delay since the offence would risk violating the appellant's right to a fair trial within a reasonable time. Therefore, the court set aside the...
Court Disposition
conviction and sentence set aside; appellant released; no retrial ordered
Orders
- The conviction and sentence imposed by the magistrate are set aside.
- The appellant shall be set at liberty forthwith unless otherwise held for lawful reasons.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 66 of 2004
DAVID KIMEMIA NJUGUNA ……….......…....……………… APPELLANT
VERSUS
REPUBLIC …………………………….…………………… RESPONDENT
(Appeal from original Conviction and Sentence in Criminal Case No. 147 of 2002 of the Senior
Principal Magistrate’s Court at Murang’a dated 3rd April 2003 by Mr. G. K. Mwaura – SRM)
J U D G M E N T
DAVID KIMEMIA NJUGUNA was arraigned before the principal magistrate, Murang’a on one charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the charge were that “on the 1st day of December 2000 at Gachocho trading centre in Maragua District of the Central Province unlawfully killed John Mwangi Nganga.
The appellant pleaded not guilty to the charge.
After the trial, the learned trial magistrate convicted the appellant of the offence. The court then proceeded to sentence the appellant to 10 years imprisonment. It is against that conviction and sentence that the appellant now comes to this Court by way of appeal.
Ms Ngalyuka, learned counsel for the state conceded to the appeal on the grounds that part of the prosecution was conducted by an unqualified police prosecutor. Counsel submitted that P.C. Machuka led P.W.8 in his evidence thereby, rendering the proceedings a nullity as the provisions of section 85(2) as read with section 88 of the Criminal Procedure Code were thereby contravened. Mr. Nyachoti learned Counsel for the appellant supported the learned state counsel’s contention.
I have on my part confirmed from the record that indeed P.C. Machuki led part of the prosecution of the case on behalf of the prosecution and consequently the mandatory provisions of section 85(2) as read with section 88 of Criminal Procedure Code with regard to the qualifications of Public Prosecutors in a criminal case were indeed violated. I agree with the learned state counsel that the proceedings were defective and a nullity therefor. As to who is a qualified public prosecutor in criminal cases, one only needs to revert to the law as succinctly stated by the court of appeal in the notorious case of Elirema & others v/s Republic (2003) KLR 537.
Accordingly I set aside both the conviction and sentence imposed by the learned magistrate on the appellant. Ms Ngalyuka did not urge me to order a retrial on the basis that the appellant had already served half of the sentence imposed. Accordingly prejudice would be occasioned to the appellant in the event of a retrial. The appellant as already stated welcomed the state’s gesture.
The principles applicable in determining whether or not to order a retrial are now settled. A retrial should only be ordered where the original trial was defective or a nullity. See Ahmed Juma v/s Republic (1964) EA 581. No order for a retrial should be made if it will cause a person to suffer prejudice. See Muyimba v/s Uganda (1969) EA 433. Most importantly an appellate court is enjoined not to order a retrial unless upon consideration of admissible or potentially admissible evidence it is of the opinion that a conviction may result. See Mwangi v/s Republic (1983) KLR 522.
I have taken all these principles into consideration and have applied them to the facts and circumstances of this case. Much as I am satisfied upon consideration of the available evidence that a conviction may result if I ordered a retrial, and if the self same evidence adduced before the lower court was to be adduced in the retrial, I am not however inclined to make such an order. The appellant has been in prison for the last 4½ or so years since his conviction. That period is substantial and if a retrial was to be ordered, I have no doubt at all that prejudice and injustice will be occasioned to the appellant. There is no assurance from the state that it will readily avail witnesses in the event that a retrial is ordered.
The offence committed was serious as it led to the lose of an innocent life. However the scales of justice have to be balanced. If a retrial was to be ordered in the circumstances of this case, we may be faced with the complaint that the appellant’s constitutional right to a fair trial within reasonable time was violated as the offence was committed as long ago as 1st December 2000. It is for these reasons that I decline to make an order for retrial. Instead I order that the appellant be set at liberty forthwith unless otherwise held for lawful reasons.
Dated and delivered at Nyeri this 26th day of October 2007
M. S. A. MAKHANDIA
JUDGE