[2005] KEHC 2881 (KLR)
The court found that the entire trial was a nullity because the prosecution was conducted by an unqualified public prosecutor, CPL Ongeri. As a result, the convictions and sentences against the appellants could not stand and were quashed. The court further considered whether a retrial should be ordered but declined,...
Source-derived case information.
- Citation
- [2005] KEHC 2881 (KLR)
- Parties
- Appellant: John Njau Waweru; Appellant: Amos Gachomba Waweru; Appellant: Samuel Karanu Waweru; Appellant: Peter Wanyoike Waweru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 797 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Convictions quashed and sentences set aside. No retrial ordered.
- Legal Topics
- Assault, Actual Bodily Harm, Criminal Procedure, Unqualified Prosecutor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njau Waweru
Appellant
Amos Gachomba Waweru
Appellant
Samuel Karanu Waweru
Appellant
Peter Wanyoike Waweru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence were valid given that the prosecution was conducted by an unqualified public prosecutor.
- 2 Whether a retrial should be ordered after the trial was rendered a nullity.
Ratio Decidendi
The court found that the entire trial was a nullity because the prosecution was conducted by an unqualified public prosecutor, CPL Ongeri. As a result, the convictions and sentences against the appellants could not stand and were quashed. The court further considered whether a retrial should be ordered but declined, accepting the State's position that a retrial would be unjust given the appellants had already served about half of their sentences. The court ordered the immediate release of the appellants unless otherwise lawfully held and directed that any fine paid by the 4th appellant be refunded.
Court Disposition
Appeal allowed. Convictions quashed and sentences set aside. No retrial ordered.
Orders
- The convictions of all appellants are quashed.
- The sentences imposed on all appellants are set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPEAL NO. 797 OF 2003
From Original Conviction And Sentence In Criminal Case No. 42
Of 2003 Of The Resident Magistrate’s Court At Githunguri
JOHN NJAU WAWERU AMOS GACHOMBA WAWERU SAMUEL KARANU WAWERU
PETER WANYOIKE WAWERU………..…………………….…APPELLANTS
VERSUS
REPUBLIC…………………………….…..………………….RESPONDENT
JUDGMENT
The appellants were charged with Assault causing actual bodily harm, contrary to section 251 of the Penal Code. The said offences were said to have been committed on 25th December 2002, and the record shows that the appellants were arrested on 13. 1.03.
Following a full trial, the appellants were all convicted as charged. The trial Court then sentenced the first 3 appellants to imprisonment for 3 years, whilst the 4th Appellant was sentenced to a fine of shs 20,000/=, in default of which he was to be jailed for 3 years.
The appellants then appealed against conviction and sentence. When the appeals came up for hearing, learned State Counsel, Mr. Olengo conceded the appeal. He was right to do so because the prosecution had been conducted by an unqualified public prosecutor, one CPL Ongeri. By conducting the prosecution, the unqualified prosecutor rendered the entire trial a nullity. Consequently, I now have no option but to quash the conviction and set aside the sentence.
When I asked the respondent if they were seeking a retrial, Counsel answered in the negative. He submitted that as the appellants had already served about a – half of the sentence, it would be against the interests of justice to have them face a retrial. I accept as reasonable, the stance taken by the learned State Counsel. In the circumstances, I do now direct that the appellants, who are in custody, be set at liberty unless they are otherwise lawfully held.
However, before I conclude this judgment, I am obliged to ask counsel for the appellants, Mr. Gathii Advocate, to impress it upon his clients that they were set free on a technicality.
The fact that they live in the same neighborhood as the complainants, will pose a challenge. However, it is imperative that all the parties seek to maintain peace. I have deemed it necessary to make these remarks, because in my reading of the evidence, and also from the observation of the learned trial Magistrate, the appellants did not appear remorseful for their actions.
FRED A. OCHIENG AG.JUDGE
FURTHER ORDERS
If the 4th appellant did pay the fine, the same should now be refunded to him.
FRED A. OCHIENG AG. JUDGE
In the presence of
Mr. Olengo for State
Gathii for Appellants
Mr. Odero Court clerk