[2006] KEHC 1252 (KLR)
The court found that the prosecution was conducted by an unqualified person contrary to Section 85(2) of the Criminal Procedure Code, and that the trial record did not show that witnesses were sworn before giving evidence. These procedural defects were fundamental and rendered the entire trial a nullity....
Source-derived case information.
- Citation
- [2006] KEHC 1252 (KLR)
- Parties
- Appellant: John Njoroge Gitau; Appellant: Peter Maina Gachoya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 379 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GG Okwengu
- Legal Topics
- Unqualified Prosecutor, Unsworn Witnesses, Trial Nullity, Criminal Procedure, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge Gitau
Appellant
Peter Maina Gachoya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution was conducted by a qualified prosecutor as required by law.
- 2 Whether the failure to swear witnesses before giving evidence rendered the trial a nullity.
Ratio Decidendi
The court found that the prosecution was conducted by an unqualified person contrary to Section 85(2) of the Criminal Procedure Code, and that the trial record did not show that witnesses were sworn before giving evidence. These procedural defects were fundamental and rendered the entire trial a nullity. Consequently, the convictions and sentences against the appellants could not stand and were quashed. The court declined to order a retrial as the State did not request one.
Court Disposition
appeal_allowed
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
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 379 of 2003
JOHN NJOROGE GITAU ………..............................................……............…………………..APPELLANT
VERSUS
REPUBLIC ………………………………………….......................................................…….RESPONDENT
CRIMINAL APPEAL NO. 381 OF 2003
PETER MAINA GACHOYA …………........................................................…………………APPELLANT
VERSUS
REPUBLIC …………..............................................…………….......………………………..RESPONDENT
( An appeal from the Judgment of C.D. Nyamweya , Senior Resident Magistrate, dated
30th September, 2003;
In
Criminal Case No. 1107 of 2003 of the Chief Magistrate’s Court, Nyeri.)
JUDGMENT
The learned Provincial State Counsel Mr. Charles Orinda, concedes these appeals on the ground that the prosecutor was not qualified in terms of Section 85(2) of the Criminal Procedure Code. The State Counsel does not ask for retrial.
There is also the fact that the record made by the learned trial Magistrate during the trial does not show that witnesses were being sworn before they gave evidence and in the circumstances we have to assume that witnesses were not being sworn and that the evidence on record was not taken in accordance with the law.
The above being the position, we do hereby declare the trial of the appellants a nullity. Allow the appeal of each appellant. Quash the conviction of each appellant and set aside the sentence imposed.Each appellant shall be released forthwith unless lawfully detained in some other cause.
Dated this 26th day of September, 2006.
J.M.KHAMONI
JUDGE
H.M. OKWENGU
JUDGE