[2005] KEHC 1018 (KLR)
The court found that the prosecution in the lower court was conducted by an unqualified person, Corporal Kyumbu, who did not meet the statutory requirements for a prosecutor under Section 85(2) and Section 88 of the Criminal Procedure Code. This rendered the proceedings defective and a nullity. Additionally, the...
Source-derived case information.
- Citation
- [2005] KEHC 1018 (KLR)
- Parties
- Appellant: Evans Muyendi Mwanzau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 282 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed and sentence set aside; appellant released unless otherwise lawfully held
- Legal Topics
- Unqualified Prosecution, Defective Plea, Shop Breaking, Conviction 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
Evans Muyendi Mwanzau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution in the lower court was conducted by a qualified prosecutor as required by law.
- 2 Whether the plea taken in the lower court was valid and in compliance with legal requirements.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by an unqualified person, Corporal Kyumbu, who did not meet the statutory requirements for a prosecutor under Section 85(2) and Section 88 of the Criminal Procedure Code. This rendered the proceedings defective and a nullity. Additionally, the plea was defective as the record did not disclose the language used or confirm the appellant's understanding, nor was a formal plea of guilty entered. These procedural defects invalidated the conviction and sentence, necessitating their quashing and the appellant's release.
Court Disposition
conviction quashed and sentence set aside; appellant released unless otherwise lawfully held
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS Criminal Appeal 282 of 2003 (From Original conviction (s) and Sentence (s) in Criminal Case No. 303 of 2002 of the District Magistrate’s Court at Makueni J.K. Kiia on 8/11/02
EVANS MUYENDI MWANZAU ……………………………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………………………. RESPONDENT
J U D G E M E N T
The appellant was convicted by District Magistrate I, Makueni Court in Criminal Case 303/02 on two counts of Shop breaking and committing a felony Contrary to Section 306 (a) of the Penal Code. Appellant was sentenced to serve 5 years imprisonment on each count plus 3 strokes of the cane and prison sentences were ordered to run concurrently.
The appellant merely appeals to the court’s mercy to reduce the sentence to the period he has already served. He said that he completes his sentence in March 2006. He claims to have been sick since he was in remand and prays for the court’s mercy.
The learned state counsel opposed the appeal on sentence for reasons that it is fair and that the prosecutor said that the offence was rampant and a deterrent sentence was called for. He only conceded to the three strokes of the cane since corporal punishment has been done away with.
I do not know if the learned state counsel merely shut his eyes to record of appeal and went on to submit as he did without pointing out about the prosecution of the case by Corporal Kyumbu, may be it was a genuine oversight.
A cursory look at the record of appeal reveals that the prosecutor in the lower court was one Corporal Kyumbu. He is an unqualified prosecutor because he was not a police officer above the rank of acting Inspector of Police when the Attorney General could appoint to prosecute under Section 85 (2) Criminal Procedure Code as read with Section 88 Criminal Procedure Code. Having so prosecuted when he was unqualified, the proceedings in the lower court are defective and a nullity.
Besides, the above finding, the plea was defective in that the court did not disclose in what language the plea was taken. There is no way of knowing whether the appellant understood what went on in court or not. After he pleaded to the charge, no plea of guilty was entered by the court. The plea was defective and could not sustain a conviction.
Consequently, the conviction must be quashed and sentence set aside. The appellant is set at liberty forthwith unless otherwise lawfully held.
R.V. WENDOH
JUDGE
Dated at Machakos this 12th day of October 2005
Read and delivered in the presence of
R.V. WENDOH
JUDGE