[2004] KECA 58 (KLR)
The Court of Appeal held that the appellant's trial was a nullity because it was prosecuted by an unauthorized person, contrary to section 85(2) of the Criminal Procedure Code. This defect was fatal and required the quashing of both the conviction and the sentence. However, considering that the offences were...
Source-derived case information.
- Citation
- [2004] KECA 58 (KLR)
- Parties
- Appellant: John Omondi alias Lawi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 272 of 2002
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence in the High Court
- Outcome
- Appeal allowed; conviction and sentence quashed; retrial ordered.
- Judges
- AM Githinji
- Legal Topics
- Unauthorized Prosecution, Right to Fair Trial, Retrial Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Omondi alias Lawi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in the High Court
Legal Issues
- 1 Whether the prosecution of the appellant by an unauthorized person rendered the trial a nullity.
- 2 Whether a retrial should be ordered after quashing the conviction and sentence.
Ratio Decidendi
The Court of Appeal held that the appellant's trial was a nullity because it was prosecuted by an unauthorized person, contrary to section 85(2) of the Criminal Procedure Code. This defect was fatal and required the quashing of both the conviction and the sentence. However, considering that the offences were serious, the witnesses were still available, and the judgment appealed from was recent, the court found that a fair retrial was possible. The court therefore ordered that the appellant remain in custody and be tried de novo before a competent magistrate in Mombasa.
Court Disposition
Appeal allowed; conviction and sentence quashed; retrial ordered.
Orders
- The convictions for robbery contrary to section 296(2) of the Penal Code are quashed.
- The sentence of death imposed is set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: OMOLO, O’KUBASU & GITHINJI, JJ.A.)
CRIMINAL APPEAL NO. 272 OF 2002
BETWEEN
JOHN OMONDI ALIAS LAWI……………......………….. APPELLANT
AND
REPUBLIC...………………………………………….. RESPONDENT
(Appeal from a judgment of the High Court of Kenya at
Mombasa (Onyancha, J. & Mrs. Khaminwa,
Commissioner for Assize) dated 17th September, 2002
in
H.C.CR.A. NO. 112 OF 2000)
**********************
JUDGMENT OF THE COURT
Mr. V. S. Monda, learned counsel for the Republic, conceded in his submissions before us that the appeal of the appellant, John Omondi alias Lawi, must be allowed on the ground that the prosecution of the appellant before the trial Magistrate was conducted by an unqualified and/or unauthorized person contrary to the provisions of section 85(2) of the Criminal Procedure Code.
In view of the long line of cases starting with ROY RICHARD ELIREMA & ANOTHER VS. REPUBLIC , Criminal Appeal No. 67 of 2002 (unreported), there cannot be any answer to that complaint. We accordingly quash the two convictions for robbery contrary to section 296(2) of the Penal Code and set aside the sentence of death imposed thereon. Mr. Monda, however, asked us to order a retrial. He told us that his witnesses are still available and can be called to testify again whenever required. The offences were allegedly committed in Mombasa and the appellant was apparently arrested by members of the estate where he resided and who were dissatisfied with his conduct within the estate. There appears to be a valid justification for the dissatisfaction with the appellant’s conduct. The evidence brought against him during the abortive trial if brought again, might well result in a conviction. Time has elapsed since the alleged offences were committed but as we have been told, the witnesses are still available and are in Mombasa. The police officers can be traced through the police force. The judgment of the superior court against which the appeal is brought before us was delivered only on 17th September, 2002. Taking all these matters into account, we reject the contention of Mr. Wameyo for the appellant that a fair trial is not possible in the circumstances.
Accordingly, we order that the appellant shall remain in custody and shall be tried de novo before a Magistrate with competent jurisdiction in Mombasa. Those shall be our orders in the appeal.
Dated and delivered at Mombasa this 23rd day of July, 2004.
R. S. C. OMOLO
…………………………….
JUDGE OF APPEAL
E. O. O’KUBASU
……………………………….
JUDGE OF APPEAL
E. M. GITHINJI
………………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR