[2005] KEHC 1361 (KLR)
The court found that the participation of P.C. Ogolla, an unqualified prosecutor, in leading evidence for key prosecution witnesses was a contravention of Section 85(2) of the Criminal Procedure Code. This defect was not severable from the rest of the proceedings, rendering the entire trial a nullity. In considering...
Source-derived case information.
- Citation
- [2005] KEHC 1361 (KLR)
- Parties
- Appellant: Joseph Kilana Andavuka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 50 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained
- Legal Topics
- Unqualified Prosecution, Nullity of Trial, Retrial Principles, Burglary, Possession of Cannabis
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kilana Andavuka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the participation of an unqualified prosecutor vitiated the entire trial proceedings.
- 2 Whether a retrial should be ordered in the circumstances of the case.
Ratio Decidendi
The court found that the participation of P.C. Ogolla, an unqualified prosecutor, in leading evidence for key prosecution witnesses was a contravention of Section 85(2) of the Criminal Procedure Code. This defect was not severable from the rest of the proceedings, rendering the entire trial a nullity. In considering whether to order a retrial, the court weighed the interests of justice and potential prejudice to the appellant, noting that the offence occurred in May 2003, the trial took a year, and the appellant had already served more than a third of the sentence. The court concluded that a retrial would not serve the ends of justice and would be prejudicial to the appellant....
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained
Orders
- The trial before the lower court is declared a nullity.
- The appeal is allowed.
Full Case Text
Judgment text and source record
25 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI Criminal Appeal 50 of 2004
JOSEPH KILANA ANDAVUKA…………………………..…………APPELLANT
VERSUS
REPUBLIC…………………………………………………..….……RESPONDENT
JUDGMENT
The appellant was tried, convicted and sentenced for burglary, and being in possession of Cannabis Sativa.
Being dissatisfied with both the conviction and sentence he preferred this appeal.
At the hearing of the appeal, counsel for the respondent conceded the appeal on the ground that part of the prosecution was conducted by an unqualified officer – P.C. Ogolla contrary to the provisions of Section 85 (2) of the C.P. C. counsel did not seek for retrial.
From the record, it is clear that P.C. Ogolla led PW1 and PW 2 in their evidence.The other prosecution witnesses were led by Inspector of Police Situma.
The trial being one, prosecution by P.C. Ogolla cannot be severed from the rest of the proceedings. The participation of P.C. Ogolla, being a contravention of a substantive provision of the law vitiates the entire proceedings before the subordinate Court.
In considering whether or not to order for a retrial the Court is guided by the consideration whether a retrial will serve the ends of justice and not fundamentally be prejudicial to the appellant.
The offence was committed an the right of 20th & 21st of May, 2003. Trial commenced on 24th June, 2003 and the judgment delivered on 12th May, 2004.
The trial took one year. The appellant has served more than 1/3 of the term.Given all these factors, it is my opinion that an order for a retrial will not serve the ends of justice but will be prejudicial to the appellant.
It is ordered that the trial before the lower Court was a nullity.
The appeal is allowed, conviction quashed and sentence set aside. The appellant shall be set free forthwith, unless otherwise lawfully detained.
Dated and delivered at Malindi this 6th day of September, 2005.
6. 9.2005
Judgment delivered
Present
Mr.Odhiambo for Mr.Ogoti for the state.
Appellant in person.
CC: National Council for Law Reporting
W. OUKO
JUDGE