[2013] KEHC 1138 (KLR)
The court found that the trial magistrate, being of the rank of District Magistrate II (Professional), did not have the requisite jurisdiction to try the offence of grievous harm under section 234 of the Penal Code. The law requires that such offences be tried by a subordinate court of the first class. As...
Source-derived case information.
- Citation
- [2013] KEHC 1138 (KLR)
- Parties
- Appellant: Gabriel Mbele; Appellant: Jakan Fubu; Appellant: Jeremiah Mgangu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 146 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- GO Shikwe
- Legal Topics
- Jurisdiction of Magistrate Courts, Grievous Harm, Criminal Procedure, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Mbele
Appellant
Jakan Fubu
Appellant
Jeremiah Mgangu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to try the offence of grievous harm.
- 2 Whether the conviction and sentence were valid in light of the magistrate's rank.
Ratio Decidendi
The court found that the trial magistrate, being of the rank of District Magistrate II (Professional), did not have the requisite jurisdiction to try the offence of grievous harm under section 234 of the Penal Code. The law requires that such offences be tried by a subordinate court of the first class. As jurisdiction is foundational to the validity of any trial, the proceedings before the lower court were a nullity ab initio. Consequently, the conviction and sentence imposed on the appellant were quashed and set aside, and the appellant was ordered to be set at liberty unless otherwise lawfully held.
Court Disposition
appeal allowed
Orders
- The conviction is quashed and sentence set aside.
- The appellant is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 146 OF 2011
GABRIEL MBELE …............................................................ 1ST APPELLANT
JAKAN FUBU …...................................................................2ND APPELLANT
JEREMIAH MGANGU…..........................……......................3RD APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 252 of 2011 of the Senior Resident Magistrate's Court at Wundanyi – Hon. Chesang – DM II)
JUDGMENT
The appellants were Convicted and Sentenced to one year imprisonment as regards the first appellant and in respect to 2nd and 3rd appellant a fine of Ksh. 20,000/= in default nine (9) months imprisonment. This appeal is in respect to the first appellant only as the 2nd and 3rd appellants have already served their Sentences and their appeal is marked abandoned.
The three appellants had been Convicted of the offence of grevious harm contrary to section 234 of the penal code.
The particulars being that on the 11th day of March, 2011 at about 6:00 pm at Josa Village Kishamba Location within Taita Taveta County jointly with another not before the court unlawfully did grievous harm to Boniface Mwaengo Mwawughanga.
It is common ground that at the time the trial magistrate was dealing with this case she was of the rank of District Magistrate II ( Professional).
The charge before her was that of grievous harm contrary to section 234 of the Penal Code.
The first schedule to the Criminal Procedure Code gives a break down of offences and the jurisdiction of various Courts in regard to these offences.
The offence of causing grievous harm is triable by a subordinate court of first class. A DM II Court is clearly not a subordinate court of first class.
Jurisdiction is everything. The trial magistrate did not have jurisdiction and the entire trial was a nullity. The Conviction and Sentence was without any basis. The Conviction is quashed and Sentence set aside.
The appellant is set at liberty unless otherwise lawfully held.
Judgment delivered dated signed this 11th day of November, 2013.
…....................
M. MUYA
JUDGE
11TH NOVEMBER, 2013
In the presence of:-
Learned Counsel for the Defence Mr. Ajibo holding brief Obara
Learned State Counsel absent
Court clerk Musundi