[2005] KECA 231 (KLR)
The Court of Appeal held that the entire trial of the appellants was a nullity because it was prosecuted by a police officer (Senior Sergeant Kigera) who was not qualified to conduct prosecutions under the law, as established in Roy Richard Elirema & Another v. Republic. Consequently, the convictions and sentences...
Source-derived case information.
- Citation
- [2005] KECA 231 (KLR)
- Parties
- Appellant: Joseph Muriuki Wachira; Appellant: Stephen Marete Muriithi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 254 & 255 of 2003
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence; Determination by Court of Appeal
- Outcome
- Appeal allowed; convictions quashed; sentences set aside; retrial ordered.
- Legal Topics
- Prosecutorial Authority, Invalid Trial, Retrial Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muriuki Wachira
Appellant
Stephen Marete Muriithi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence; Determination by Court of Appeal
Legal Issues
- 1 Whether the prosecution of the appellants by a police officer not qualified to prosecute rendered the trial a nullity.
- 2 Whether the convictions and sentences should be quashed as a result of the improper prosecution.
- 3 Whether the appellants should be set at liberty or retried.
Ratio Decidendi
The Court of Appeal held that the entire trial of the appellants was a nullity because it was prosecuted by a police officer (Senior Sergeant Kigera) who was not qualified to conduct prosecutions under the law, as established in Roy Richard Elirema & Another v. Republic. Consequently, the convictions and sentences imposed on the appellants were quashed. However, given the seriousness of the charges, the availability of evidence and witnesses, and the interests of justice, the court declined to set the appellants at liberty and instead ordered a retrial before a different magistrate on the same charges, with the appellants to remain in custody pending retrial.
Court Disposition
Appeal allowed; convictions quashed; sentences set aside; retrial ordered.
Orders
- Convictions against each appellant quashed.
- Sentences imposed on each appellant set aside.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
CORAM: OMOLO, GITHINJI & WAKI, JJ.A.
Criminal Appeal 254 & 255 of 2003
1. JOSEPH MURIUKI WACHIRA
2. STEPHEN MARETE MURIITHI…………..…….....................….APPELLANTS
AND
REPUBLIC………………………………..............................…..….RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nyeri (Juma &
Mitey, JJ) dated 13. 8.200
in
H.C.CR.A. NO. 139 & 140 OF 2001)
**********************
JUDGMENT OF THE COURT
The appeals ofJOSEPH MURIUKI WACHIRA andSTEPHEN MARETE MURIITHI must be allowed on the principles laid down by this Court in the case of ROY RICHARD ELIREMA & ANOTHER V. REPUBLIC [2003] 1 EA 50 (CAK). Right from the very beginning of their trial which started before a Senior Resident Magistrate at Nyeri on 17th July, 2000, their prosecution was conducted before the Magistrate by a Senior Sergeant Kigera and on that basis alone, we must allow their appeals against conviction on all the counts upon which each of them was convicted. We accordingly quash the convictions recorded against each appellant and set aside the various sentences imposed on each one of them.
Ought we to set the appellants at liberty as their learned counsel Mr. Muguku asked us to do? We are not inclined to do so. The offences were all alleged to have been committed between 20th and 21st March, 2000. The trial of the appellants commenced on 17th July, 2000 and was concluded by the judgment of the magistrate dated and delivered on 7th May, 2001. The judgment of the High Court dismissing their first appeals to that court was delivered on 13th April, 2003. The charges against the appellants were all very serious and if properly considered, the evidence available in the record before us could well result into a conviction. Mr. Orinda told us on behalf of the Republic that the witnesses could still be traced. In all the circumstances, we think we should order a retrial. Accordingly, we order that the appellants shall be tried de novo before a different magistrate on the self – same charges and for that purpose, we order that they shall remain in prison custody pending their production before a magistrate for their retrial.
Those shall be our orders in the two appeals.
DATED and DELIVERED at NYERI this 20th day of May, 2005.
R.S.C. OMOLO
……………………………….
JUDGE OF APPEAL
E.M. GITHINJI
……………………………….
JUDGE OF APPEAL
P.N. WAKI
………………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR