[2005] KEHC 3242 (KLR)
The court found that the prosecution was conducted by an unqualified police constable, which rendered the entire proceedings a nullity in accordance with established case law. Upon reviewing the evidence, the court determined that a retrial was not appropriate because the identification evidence was weak, being...
Source-derived case information.
- Citation
- [2005] KEHC 3242 (KLR)
- Parties
- Appellant: Joseph Mwaniki Waweru; Appellant: David Wainaina Nguku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 636 & 641 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; sentences set aside; appellants to be released unless otherwise lawfully held
- Legal Topics
- Unqualified Prosecutor, Nullity of Proceedings, Retrial Principles, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwaniki Waweru
Appellant
David Wainaina Nguku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution conducted by an unqualified prosecutor rendered the proceedings a nullity.
- 2 Whether a retrial should be ordered after the original trial was declared a nullity.
- 3 Whether the evidence on record could sustain a conviction if a retrial were ordered.
Ratio Decidendi
The court found that the prosecution was conducted by an unqualified police constable, which rendered the entire proceedings a nullity in accordance with established case law. Upon reviewing the evidence, the court determined that a retrial was not appropriate because the identification evidence was weak, being based on a single witness under difficult circumstances, and thus unlikely to result in a conviction. Consequently, the court quashed the convictions, set aside the sentences, and ordered the appellants' release unless otherwise lawfully held.
Court Disposition
appeal allowed; convictions quashed; sentences set aside; appellants to be released unless otherwise lawfully held
Orders
- The convictions of both appellants are quashed.
- The sentences imposed on both appellants are set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
Criminal Appeal 636 of 2002
(From original conviction (s) and Sentence(s) in Criminal case No. 4713of 2001
of the Chief Magistrate’s Court at Thika (Betty Rashid- P.M.)
JOSEPH MWANIKI WAWERU....….…………………….…..APPELLANT
VERSUS
REPUBLIC…………………… ……………………………...RESPONDENT
CONSOLIDATED WITH
Criminal Appeal 641 of 2002
(From original conviction (s) and Sentence(s) in Criminal case No. 4713 of 2001
of the ChiefMagistrate’s Court at Thika (Betty Rashid- P.M
DAVID WAINAINA NGUKU…………………………………..APPELLANT
VERSUS
REPUBLIC …………………………………………………....RESPONDENT
J U D G M E N T
JOSEPH MWANIKI WAWERU and DAVID WAINAINA NGUKU, the 1st and 2nd Appellants respectively were found guilty of robbing PETER MAINA NJOROGE of his personal belongings and cash including a motor vehicle registration No. KYT 455. They were sentenced to death. They have challenged both the conviction and sentences.
MR. MAKURA, learned counsel for the Respondent conceded to the Appeal on grounds that the prosecutor in the case, when the wife of the Complainant, PW3 gave evidence was unqualified. He was Police ConstableOMULEPU. MR. MAKURAsubmitted that the prosecution byPC OMULEPU rendered the entire proceedings a nullity. We agree that that is the correct position of the law particularly in light of the case of ELIREMA & ANOTHER vs. REPUBLIC CA No. 67 of 2002.
We have on our part perused the record of the proceedings. It is true that PC OMULEPUconducted the prosecution of the case at the time the Complainant’s wife, PW3 gave evidence. That rendered the entire proceedings a nullity. Accordingly, we invalidate the same, quash the convictions and set aside the sentences.
MR. MAKURA submitted further that the State was not desirous of a re-trial. He submitted that there was one identifying witness and that in his humble view, it was going to be an uphill task to secure a conviction. The Appellants did not oppose that preposition.
An order for retrial may be made where, like in this case, the original trial was a nullity.Such an order should, however, only be made upon certain considerations. Part of the considerations are whether on the admissible or potentially admissible evidence a conviction may result. We have evaluated the evidence that was adduced before the Court and find that a conviction may not result if a retrial were ordered. Not only was the evidence of identification by a single witness but also the circumstances of identification were extremely difficult. That kind of evidence in our view cannot sustain a conviction. Accordingly we decline to order a retrial. We order instead that both Appellants should be set at liberty unless they are otherwise lawfully held.
Dated at Nairobi this 2nd day of June 2005.
LESIIT, J. F.A. OCHIENG’
JUDGE JUDGE
Read, signed and delivered in the presence of;
LESIIT,J. F.A. OCHIENG’
JUDGE JUDGE