[2013] KEHC 2676 (KLR)
The High Court found that the conviction on count I could not be sustained due to insufficient evidence, particularly regarding identification. For count II, although the evidence was sufficient to support a conviction, the absence of the Attorney General's consent rendered the trial a nullity. The court held that a...
Source-derived case information.
- Citation
- [2013] KEHC 2676 (KLR)
- Parties
- Appellant: Ephantus Maina Mutonyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 496 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; convictions quashed; sentences set aside; retrial ordered on count II.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Anti Corruption Offences, Prosecutorial Consent, Retrial Guidelines, Procedural Nullity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ephantus Maina Mutonyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the conviction on both counts was sustainable in light of the evidence and procedural requirements.
- 2 Whether the lack of consent from the Attorney General rendered the trial a nullity.
- 3 Whether a retrial should be ordered in respect of count II.
Ratio Decidendi
The High Court found that the conviction on count I could not be sustained due to insufficient evidence, particularly regarding identification. For count II, although the evidence was sufficient to support a conviction, the absence of the Attorney General's consent rendered the trial a nullity. The court held that a procedural defect does not automatically entitle an accused to acquittal if the evidence supports conviction. Applying established guidelines, the court determined that a retrial was appropriate for count II, as there was no indication of prejudice to the appellant, the witnesses were presumed available, and the offence was of significant public interest. The convictions were...
Court Disposition
Appeal allowed; convictions quashed; sentences set aside; retrial ordered on count II.
Orders
- The appeal is allowed on both counts.
- Convictions on both counts are quashed and sentences set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Milimani Law Courts)
Criminal Appeal 496 of 2009 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
REPUBLIC OF KENYA
EPHANTUS MAINA MUTONYI ……… ………………………APPELLANT
VERSUS
REPUBLIC ………………………………………………………RESPODENT
(From original conviction and sentencing in Criminal Case No. 34 of 2007 In the Chief Magistrate’s Court at Nairobi by R.E. Ougo C.M.)
JUDGMENT
The appellant was charged with two offences under the Anti-Corruption and Economic Crimes Act No. 3 of 2003. In count I he was charged with the offence of soliciting for a benefit contrary to Section 39 (3(a) as read with Section 48 (1) of the said Act. In Count II he was charged with the offence of receiving a benefit contrary to Section 39 (3) (a) as read with Section 48 (1) of the same Act. He denied the offences but after a full trial he was convicted on both counts and fined Kshs. 35,000/= in default 6 months imprisonment on each count. The sentences were ordered to run consecutively if the fine was not paid.
Being dissatisfied with the said conviction and sentence he filed this appeal. He raised several grounds of appeal in his petition but because of the ultimate decision that I am about to make, it shall not be necessary for me to set out a concise analysis of the evidence and the decision made thereunder.
The learned counsel for the Republic concedes the appeal but asks for a retrial in respect of count II on the grounds that in respect of count I, there was insufficient evidence adduced by the prosecution with regard to the identification of the voice of the appellant. With respect to count II there was sufficient evidence upon which the conviction was founded but regrettably the consent of the Attorney General was not obtained before the prosecution was mounted. The lack of consent by the attorney general vitiated the trial but this does not prohibit an order for a retrial.
On my part I have gone through the entire record before me, and with respect agree with the learned counsel for the Republic that there was not sufficient evidence upon which the first count could be sustained. However, there was sufficient evidence upon which the 2nd count was based to arrive at the conviction by the learned trial magistrate.
It is true that such offences required the consent of the Attorney General before prosecution. This having not been obtained, the trial was null and void. Does this mean that the appellant should be acquitted? This court must fall back back to the evidence adduced and, with respect, the fact that a trial is a nullity because of a procedural or technical error does not mean that the accused person is innocent.
The learned counsel for the Republic has asked for a re-trial. In so doing she cited the case of Republic versus Vincent Otieno Odawa (2006) klr in which guidelines for ordering a retrial were set out. A retrial will be ordered:
I.When the original trial was illegal and defective.
II.Each case must depend on its own peculiar facts and circumstances.
III.That the order of retrial should only be made where the interest of justice require it.
IV.It will not be ordered if by so doing an injustice or prejudice will be occasioned to the accused.
V.An order of the trial will not be made for purposes of enabling the prosecution to fill gaps in his evidence at the first trial.
VI.A retrial should not be ordered unless the court is of the opinion that a proper consideration of the admissible and potentially admissible evidence a conviction must result. – see Ratilal Shah Vs Rep (1958) E.A.3
Other considerations relate to the availability of witnesses who testified in the original trial, the seriousness of the offence and I add, public interest. There is no doubt that to this day the appellant knows the nature of the offence upon which he was convicted. It has not been alleged that the witnesses are not available and if they are not available, this is not the time to raise that issue. The offence relates to corruption an issue that is in the public interest. I cannot see any prejudice that may be occasioned to the appellant if a retrial were to be held. If anything, public interest takes precedence. I have seen no void that the prosecution may want to fill in the retrial and if any steps are taken to the prejudice of the appellant in any retrial, then the court will be addressed accordingly. I am persuaded that this is an appropriate case for a retrial.
Accordingly I allow this appeal on both counts, quash the convictions and set aside the sentences. I order that the appellant shall be subjected to a retrial in respect of count II by a court of competent jurisdiction. The appellant shall present himself to Kilimani Police Station within the next seven (7) days so that the retrial may be initiated. In the meantime he shall executive a bond of Kshs. 100,000/= pending his presentation at the Police Station.
Orders accordingly.
SIGNED DATED and DELIVERED in open court this 2nd day of May, 2013.
A.MBOGHOLI MSAGHA
JUDGE
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]