[2007] KEHC 3112 (KLR)
The court found that the trial court's failure to indicate the language of the court and the witnesses constituted a violation of the appellant's constitutional and statutory rights, rendering the proceedings a nullity. Consequently, both the conviction and sentence were set aside. In considering whether to order a...
Source-derived case information.
- Citation
- [2007] KEHC 3112 (KLR)
- Parties
- Appellant: John Kibe Kwendo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 533 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; no retrial ordered; appellant to be released forthwith unless otherwise lawfully held.
- Judges
- CJ Kendagor, GMA Dulu
- Legal Topics
- Right to Fair Trial, Language of Proceedings, Nullity of Proceedings, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kibe Kwendo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to indicate the language of the court and witnesses violated the appellant's constitutional and statutory rights.
- 2 Whether the proceedings were rendered a nullity due to the violation of the appellant's rights.
- 3 Whether a retrial should be ordered in the circumstances of the case.
Ratio Decidendi
The court found that the trial court's failure to indicate the language of the court and the witnesses constituted a violation of the appellant's constitutional and statutory rights, rendering the proceedings a nullity. Consequently, both the conviction and sentence were set aside. In considering whether to order a retrial, the court weighed the period already served by the appellant and the lack of evidence that the key exhibits (the cellphone and receipt) would be available for a new trial. Without these exhibits, the prosecution would be unable to secure a conviction. Therefore, the court declined to order a retrial and ordered the appellant's immediate release unless otherwise...
Court Disposition
appeal allowed; conviction and sentence set aside; no retrial ordered; appellant to be released forthwith unless otherwise lawfully held.
Orders
- The conviction and sentence against the appellant are set aside.
- No order for retrial is made.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 533 of 2005
(From original conviction (s) and Sentence(s) in Criminal Case No. 2333 of 2005 of the Chief Magistrate’s Court at Kiambu (G. M. Njuguna – PM)
JOHN KIBE KWENDO……....….…………………....………..APPELLANT
VERSUS
REPUBLIC………………….……………..…………....…....RESPONDENT
J U D G M E N T
The State through Miss Gateru, State Counsel has conceded to the Appellant’s appeal on grounds that the trial court violated the Appellant’s constitutional rights provided under Section 77(2) (b) and (f) and Statutory Rights under Section 198 of the Criminal Procedure Code when it failed to indicate the language of the Court and the one used by the witnesses. I have on my part perused the record of the proceedings and I have confirmed that indeed there was such a violation and in the consequence, the proceedings were rendered a nullity. Accordingly I do set aside both the conviction and the sentence.
The learned trial magistrate has convicted the Appellant for the alternative charge of HANDLING STOLEN CELLPHONE contrary to Section 322(2) of the Penal Code and set him free of the principle charge of ROBBERY WITH VIOLENCE contrary to Section 296(2) of the Penal Code. I note that the basis of the conviction was the fact that the Appellant was found in actual possession of the Complainant’s Cell phone on the same night it was robbed off from her. The Complainant had received severe injuries and was rushed to hospital where she was admitted for five days. The Complainant could not identify the person who robbed her as the scene where the incident occurred was dark.
In considering whether or not to order a retrial, I have taken into account factors which would support as well as those which would not support such an order being made. See AHMED vs. REPUBLIC 1943 EA 481.
The Appellant was sentenced to 9 (nine) years imprisonment on 2nd November 2005 and so by the date of this judgment he would only have served 1½ years imprisonment. That period is not substantive as to cause the Appellant any prejudice if an order for retrial were ordered. See MANJI vs. REPUBLIC 1966 EA 313.
On the other hand the only evidence against the Appellant was the Cell phone recovered from his house and a receipt which the Complainant used to identify the phone as hers. There is no evidence to suggest to this court that the two exhibits will be available for the retrial hearings. Without them, the prosecution would not secure any conviction against the Appellant. See MWANGI vs. REUBLIC 1983 KLR 522. In light of lack of evidence to prove that the two exhibits will still be available I see no need to order a retrial as it will be in vain and courts of law do not act in vain. In the circumstances I decline to order a retrial and order rather that the Appellant be set free forthwith unless he is otherwise lawfully held.
Dated at Nairobi this 18th day of April 2007.
…………………..
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of;
Appellant present
Miss Gateru for State
Tabitha: CC
……………….……
DULU
JUDGE