[2005] KEHC 1983 (KLR)
The court found that part of the prosecution was conducted by a police constable, who is not qualified to act as a public prosecutor under section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the conviction and sentence invalid. Although the offence was serious, the appellant had...
Source-derived case information.
- Citation
- [2005] KEHC 1983 (KLR)
- Parties
- Appellant: Edward Nyange Mwakio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 136 of 2003
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Narcotic Drugs Possession, Improper Prosecution, Plea of Guilty, Sentencing, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Nyange Mwakio
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the conviction and sentence were valid given that part of the prosecution was conducted by an unqualified prosecutor contrary to section 85(2) of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered after quashing the conviction.
Ratio Decidendi
The court found that part of the prosecution was conducted by a police constable, who is not qualified to act as a public prosecutor under section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the conviction and sentence invalid. Although the offence was serious, the appellant had already served nearly half of his five-year sentence and demonstrated signs of reformation. The court determined that ordering a retrial would not serve the interests of justice. Consequently, the appeal was allowed, the conviction quashed, and the sentence set aside. The appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE Criminal Appeal 136 of 2003
(FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 145 OF 2003 OF THE RESIDENT MAGISTRATE’S COURT AT WUNDANYI – A. NGUGI, RM)
EDWARD NYANGE MWAKIO …………………………APPELLANT - Versus – REPUBLIC ………………………………………………RESPONDENT
JUDGEMENT
The Appellant was on his own plea of guilty to a charge of being in possession of cannabis contrary to section 3 (1) as read with section 3 (2) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 convicted and sentenced to five years imprisonment. He has appealed against the sentence.
When the appeal came before me for hearing on 18th July 2005 Mr. Ademba, learned state counsel, conceded it on the ground that part of the prosecution case was conducted by PC Mwadogo contrary to section 85(2) of the Criminal Procedure Code. He however asked for a retrial arguing that the offence with which the appellant was charged was serious and that the Appellant had not served two thirds of the imprisonment term.
On his part the Appellant opposed the retrial on the ground that he has been in prison for long and that he has suffered enough. He further stated that he has reformed as he is now a saved man.
Section 85(2) requires that all public prosecutors should be Advocates of the High Court or Police officers of the rank of Assistant Inspector of police and above. A police Constable is below that rank. In the circumstances, I allow this appeal quash the conviction and set aside the sentence.
As regards the plea for a retrial, I note that the Appellant was charged with a serious offence of being in possession of drugs which carries a heavy sentence. The appellant has served near half of the imprisonment term of five years handed down to him. I think he has suffered enough and he appears to me as having reformed. In the circumstances, I do not think it is in the interest of justice to order a retrial. I therefore order that the Appellant be set free forthwith unless otherwise lawfully held.
Dated and delivered this 19th day of July 2005.
D. K. MARAGA
JUDGE