[2005] KEHC 1661 (KLR)
The court found that part of the prosecution was conducted by PC Mwita, who was not an authorized prosecutor as required by law. This procedural irregularity rendered the entire trial a nullity ab initio. The learned magistrate failed to appreciate this defect, and as a result, the conviction and sentence could not...
Source-derived case information.
- Citation
- [2005] KEHC 1661 (KLR)
- Parties
- Appellant: Erick Cheruiyot Kirui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 81 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Unlawful Assault, Actual Bodily Harm, Trial Nullity, Unauthorized Prosecution, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Cheruiyot Kirui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial was a nullity due to prosecution by an unauthorized officer.
- 2 Whether the conviction and sentence should be quashed as a result of the procedural irregularity.
Ratio Decidendi
The court found that part of the prosecution was conducted by PC Mwita, who was not an authorized prosecutor as required by law. This procedural irregularity rendered the entire trial a nullity ab initio. The learned magistrate failed to appreciate this defect, and as a result, the conviction and sentence could not stand. The court therefore quashed the conviction and set aside the sentence, ordering the immediate release of the appellant unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO Criminal Appeal 81 of 2004
(From original conviction and sentence in Criminal Case No. 2999 of 2003 of the Resident Magistrate, Kericho – Miss B. A. Ojoo)
ERICK CHERUIYOT KIRUI…………………………………APPELLANT VERSUS REPUBLIC………………………….………………………..RESPONDENTJUDGMENT The Appellant has appealed against the original conviction and sentence imposed on him by Ms B. A. Ojoo, Resident Magistrate on 20th July, 2004 in Criminal Case No. 2999 of 2003. Earlier, the Appellant had been charged for the offence of assault, causing actual bodily harm, contrary to Section 251 of the Penal Code. The facts of the prosecution case as stated in the Charge Sheet are as follows:
“On the 11th October, 2003 at Chepkosilen village in Kericho District within Rift Valley Province unlawfully assaulted Wilson Cheruiyot Rono thereby occasioning him actual bodily harm”.
During the hearing of the case, the prosecution was partly conducted by PC Mwita who is not an authorized officer. In his submissions, Mr. Ngetich has submitted that the trial was a nullity ab initioand that the learned Magistrate had failed to appreciate that the entire trial was a mistrial. On the other hand, the State through Mr. Gumo Assistant Deputy Public Prosecutor has notopposed the appeal. Since the position of the law is very clear, I hereby allow the appeal. The conviction is hereby quashed while the sentence is set aside.
The Appellant should be released forthwith unless held lawfully.
Judgment written, read and delivered in open Court.
MUGA APONDI JUDGE 5TH JULY, 2005