[2004] KEHC 2590 (KLR)
The court found that the prosecution in the lower court was conducted by a Police Constable, in direct contravention of Section 85(2) of the Criminal Procedure Code. This rendered the entire trial a nullity ab initio, as affirmed by recent Court of Appeal decisions. The court further considered whether to order a...
Source-derived case information.
- Citation
- [2004] KEHC 2590 (KLR)
- Parties
- Appellant: Janet Muraa Onyari; Appellant: Alice Siringi Yatoo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 900 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellants to be released unless otherwise lawfully held.
- Legal Topics
- Prosecution Authority, Trial Nullity, Retrial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Muraa Onyari
Appellant
Alice Siringi Yatoo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution by a Police Constable contravened Section 85(2) of the Criminal Procedure Code.
- 2 Whether the trial was a nullity ab initio due to improper prosecution.
- 3 Whether a retrial should be ordered given the circumstances of the appellants.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by a Police Constable, in direct contravention of Section 85(2) of the Criminal Procedure Code. This rendered the entire trial a nullity ab initio, as affirmed by recent Court of Appeal decisions. The court further considered whether to order a retrial but determined that, given the appellants had only about five months remaining on their sentences, a retrial would likely result in them spending more time in custody than warranted. Therefore, the interests of justice required that the convictions be quashed and sentences set aside, with the appellants to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellants to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO. 900 OF 2002 (from original conviction and sentence in Criminal Case No. 7831 of 2001 of the Chief Magistrate’ s Court at Makadara) JANET MURAA ONYARI …………..……………….. APPELLANT VERSUS REPUBLIC ………………………….……..…………. RESPONDENT CONSOLIDATED WITH CRIMINAL APPEAL NO. 902 OF 2002 ALICE SIRINGI YATOO ……………………………… APPELLANT VERSUS REPUBLIC …………………………………………… RESPONDENT J U D G M E N T It is clear from the trial record from the Court below that the prosecution was undertaken by a Police Constable Marubu. This is in contravention of the express provisions of Section 85 (2) of the Criminal Procedure Code. The Court of Appeal has also held in 2 recent decisions that such a trial is a nullity ab initio. The Court therefore has no alternative but to allow this Appeal.
I have been concerned with whether or not to order for a re-trial in the circumstances of this case. The Appellants as rightly pointed out by the Learned State Counsel have about 5 months to go on their prison terms. If I were to order for a retrial, the Appellants might end up spending more time in custody. Consequently, the justice of this case militates against an order for a re-trial.
Consequently, I allow the Appeal quash the conviction and set aside the sentence. In the result the Appellants and each one of them shall forthwith be released from prison unless otherwise lawfully held.
Dated and delivered this 9th day of February, 2004
M. S. A. MAKHANDIA Ag. JUDGE