[2003] KEHC 303 (KLR)
The court found that the prosecution in the lower court was conducted by Police Constable Asuma, who was not authorized under section 85(2) of the Criminal Procedure Code. This rendered the entire proceedings a nullity. The respondent conceded the appeal and did not seek a retrial. Consequently, the conviction was...
Source-derived case information.
- Citation
- [2003] KEHC 303 (KLR)
- Parties
- Appellant: Festus Ochola Ogada; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 80 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Malicious Damage to Property, Prosecutorial Authority, Unauthorized Prosecution, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Festus Ochola Ogada
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution was conducted by a person authorized under section 85(2) of the Criminal Procedure Code.
- 2 Whether the conviction and sentence could stand in light of the unauthorized prosecution.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by Police Constable Asuma, who was not authorized under section 85(2) of the Criminal Procedure Code. This rendered the entire proceedings a nullity. The respondent conceded the appeal and did not seek a retrial. Consequently, the conviction was quashed and the sentence set aside, as the trial was fundamentally flawed due to lack of prosecutorial authority.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction of the appellant is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.80 OF 2002 (From Original conviction and sentence in Criminal Case No.3741 of 2001 of the Chief Magistrate’s Court, Mombasa) FESTUS OCHOL OGADA …………...…………………… APPELLANT VERSUS REPUBLIC …………………..………………………….. RESPONDENT
J U D G M E N T
Festus Ochola Ogada, the appellant, was convicted of malicious damage to property contrary to Section 339 (1) of the Penal Code, in that on the 12th November 2002 at about 5. 30 p.m. at Nyali Estate in Mombasa District willfully and unlawfully damaged a plastic chair valued at KSh.550/- the property of Hanns Mollin. He was conditionally discharged under Section 35(1) of the penal Code.
The appellant filed the present appeal against conviction through the law firm of M/s Marende & Company which was prosecuted by Mr. Nyalwa advocate.
At the commencement of the hearing of this appeal Mr. Nyalwa pointed out to the court that the prosecution had been conducted by unauthorised person, namely Police Constable Asuma, contrary to the Provisions of section 85(2) of the Criminal Procedure Code, which is to the effect that Attorney General may appoint, by writing under his hand, an advocate of the High Court or a person employed in the public service, not being a police officer below the rank of Assistant Inspector of police to be a public prosecutor for the purposes of any case.
Mrs. Margaret Mwangi, learned Principal State Counsel, conceded this appeal and declined to ask for a retrial, quite properly so.
For these reasons, the conviction of the appellant is hereby quashed and sentence is set aside.
It is so ordered.
Dated and delivered at Mombasa this 2nd September 2003. A.G.A. ETYANG JUDGE