[2005] KEHC 740 (KLR)
The court found that the trial was a nullity because a substantial part of the prosecution was conducted by an unqualified person, Police Constable Machuki, contrary to Section 85(2) of the Criminal Procedure Code. Given that over four years had elapsed since the appellants were first taken to court, and that it...
Source-derived case information.
- Citation
- [2005] KEHC 740 (KLR)
- Parties
- Appellant: John Kihu Macharia; Appellant: Eliud Kamau alias Chameleon alias Mayor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 489 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; sentences set aside; appellants to be released unless otherwise lawfully detained.
- Legal Topics
- Robbery With Violence, Unqualified Prosecutor, Nullity of Trial, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kihu Macharia
Appellant
Eliud Kamau alias Chameleon alias Mayor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial was a nullity due to prosecution by an unqualified person contrary to Section 85(2) of the Criminal Procedure Code.
- 2 Whether a re-trial should be ordered given the lapse of time and potential prejudice to the appellants.
Ratio Decidendi
The court found that the trial was a nullity because a substantial part of the prosecution was conducted by an unqualified person, Police Constable Machuki, contrary to Section 85(2) of the Criminal Procedure Code. Given that over four years had elapsed since the appellants were first taken to court, and that it would be difficult to trace witnesses for a re-trial, the court held that ordering a re-trial would be unjust and prejudicial to the appellants. The court therefore allowed the appeals, quashed the convictions, set aside the sentences, and ordered the immediate release of the appellants unless otherwise lawfully detained.
Court Disposition
appeal allowed; convictions quashed; sentences set aside; appellants to be released unless otherwise lawfully detained.
Orders
- The trial of the appellants is declared a nullity.
- The appeal of each appellant is allowed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 489 of 2002
JOHN KIHU MACHARIA…………………….….…………….APPELLANT
Versus
REPUBLIC…………………………………………………….RESPONDENT
Criminal Appeal 8 of 2003
ELIUD KAMAU alias CHAMELEON alias MAYOR………..APPELLANT
Versus
REPUBLIC………………………………………..………..….RESPONDENT
(Being appeals from the judgment of Abdul El
Kindly, Principal Magistrate, dated 3rd October
2002, in the senior Principal Magistrate’s Court at
Muranga, Criminal Case N. 1531 of 2001)
JUDGMENT
These two appeals were consolidated for hearing, John Kihu Macharia being referred to in the proceedings as the First Appellant and Eliud Kamau as the Second Appellant.
The two appellants, together with the other two not appellants herein, were charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code particulars alleging that on the 23rd day of May 2001 at Kandegenye Village in Muranga District, they jointly with others not before the court robbed Eunice Njeri Kimani of the items mentioned in the charge sheet using violence while armed with dangerous weapons namely, axes, pangas and rungus.
The two appellants appealed because they were convicted and each sentenced to death.
When their appeals came before us for hearing, the learned State Counsel M/S Ngalyuka told us she conceded the appeals because the trial of the appellants was sometimes conducted by a prosecutor who was not qualified to prosecute in terms of Section 85(2) of the Criminal Procedure Code. This can be seen from page 11 to page 16 of the typed proceedings. The prosecutor was Police Constable Machuki and he conducted a substantial part of the prosecution.
The learned State Counsel said she was not asking for a re-trial because it may be difficult to get witnesses.
While the First Appellant did not understand what the State Counsel was saying, the Second Appellant’s re-action was that he welcomed what the State Counsel had said.
On our part, we find no good reason to disagree with what the learned State Counsel said. It is a fact that Police Constable Machuki conducted a substantial part of the prosecution in the trial court. Three good years have passed from the time the appellants were convicted and sentenced and indeed it may be difficult to trace the witnesses to give evidence in a re-trial which may be ordered and that difficulty in getting the witnesses is likely to work to the prejudice of the appellants as they will be made to stay in prison remand for a long time before their case is decided, and that for no mistake of theirs. Add to that the period they have so far been behind the bars, conservatively, counting it from the date they were first taken to court on the 15th October 2001 to-date.
That is already four years. In our view, all that will work injustice to the appellants who may, in the end be acquitted for lack of sufficient evidence.
The above being the position, we need not look for more reasons to decide the issue of re-trial as clearly this is a fit case where there ought to be no re-trial.
Accordingly, we do hereby declare the trial of the appellants in this matter a nullity. We do allow the appeal of each appellant. Quash each appellant’s conviction and set aside the sentence imposed on each appellant.
We do order that each appellant be set at liberty forthwith if he is not lawfully detained in some other cause.
Dated this 15th day of December 2005.
J. M. KHAMONI
JUDGE
H. M. OKWENGU
JUDGE