[2003] KEHC 366 (KLR)
The court found that the prosecution in the lower court was conducted by Senior Sergeant Kalombi, who was not an authorised public prosecutor as required by Section 85(2) of the Criminal Procedure Code. As a result, the entire proceedings were a nullity. Both the conviction and sentence against the appellant and his...
Source-derived case information.
- Citation
- [2003] KEHC 366 (KLR)
- Parties
- Appellant: Joakim Anael Said; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 376 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; conviction and sentence quashed; retrial ordered.
- Legal Topics
- Grievous Harm, Unlawful Injury, Prosecutorial Authority, Criminal Procedure Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joakim Anael Said
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the prosecution in the lower court was conducted by an authorised public prosecutor as required by law.
- 2 Whether the conviction and sentence should be quashed due to procedural irregularity under Section 85(2) of the Criminal Procedure Code.
- 3 Whether a retrial should be ordered after quashing the conviction.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by Senior Sergeant Kalombi, who was not an authorised public prosecutor as required by Section 85(2) of the Criminal Procedure Code. As a result, the entire proceedings were a nullity. Both the conviction and sentence against the appellant and his co-accused were quashed. Given that the respondent applied for a retrial and the appellant did not object, the court ordered a retrial before a different magistrate of competent jurisdiction for the same offence. The appellant was to be released from prison and committed to police custody for the purpose of being recharged, and the co-accused, who was on probation, was also to...
Court Disposition
Appeal allowed; conviction and sentence quashed; retrial ordered.
Orders
- The conviction of the appellant and Hamad Bakari is quashed.
- The sentence of three years imprisonment and three strokes of the cane against the appellant is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.376 OF 2002
(From Original conviction and sentence in Criminal Case No.248 of 2002 of the Chief Magistrate’s Court, Mombasa)
JOAKIM ANAEL SAID …………...……………………… APPELLANT VERSUS REPUBLIC …………………..………………………….. RESPONDENT
J U D G M E N T
JOAKIM ANAEL SAID (appellant) and HAMAD BAKARI were convicted of offence of Grievous Harm contrary to Section 234 Penal Code, in that on the 6th April 2002 at about 7. 30 p.m. at Kimondia Village in Taita Taveta District unlawfully did grievous harm to Hamisi Fredrick.
The appellant was sentenced to serve three years imprisonment and to receive three strokes of the cane while Hamad Bakari, who was aged 16 years, was placed on three years probation with effect from the 2nd October 2002.
The appellant has now appealed against conviction, and one of the grounds which he has raised is that the criminal proceedings in the lower court were a nullity as the prosecution was conducted before the trial magistrate by an unauthorised public prosecutor, Senior Sergeant Kalombi, contrary to Section 85(2) of the Criminal Procedure Code.
Mr. Margaret Mwangi, learned Principal State Counsel, has conceded this point and has gone further to apply for a retrial which the appellant does not object.
For the above reasons this appeal is allowed, the conviction of the appellant and Hamad Bakari is quashed, the sentence of three years imprisonment and three strokes of the cane passed against the appellant, and three years probation passed against Hamad Bakari are hereby set aside.
I order a retrial to be conducted before a different magistrate but of competent jurisdiction for the same offence of Grievous Harm contrary to Section 234 Penal Code.
For this purpose I order that the appellant be released from prison and is now committed into the custody of the police at Central Police Station Mombasa. He is to be charged before the Senior Principal Magistrate Mr. Mushelle on the 3rd September 2003.
Hamad Bakari, who is serving a probation term, is to be recharged jointly with the appellant.
It is so ordered.
Dated and delivered this 2nd September 2003.
A.G.A. ETYANG
JUDGE