[2006] KEHC 1777 (KLR)
The court found that the entire proceedings in the lower court were a nullity because the prosecution was conducted by an unqualified person, contrary to the requirements of the Criminal Procedure Code. Upon reviewing the evidence, the court determined that the identification of the appellant was weak, inconsistent,...
Source-derived case information.
- Citation
- [2006] KEHC 1777 (KLR)
- Parties
- Appellant: Joseph Nganga Ngure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 501 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Judges
- CJ Kendagor, MSA Makhandia
- Legal Topics
- Robbery With Violence, Unqualified Prosecution, Nullity of Proceedings, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nganga Ngure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial was rendered a nullity due to prosecution by an unqualified person.
- 2 Whether a retrial should be ordered given the evidence on record.
Ratio Decidendi
The court found that the entire proceedings in the lower court were a nullity because the prosecution was conducted by an unqualified person, contrary to the requirements of the Criminal Procedure Code. Upon reviewing the evidence, the court determined that the identification of the appellant was weak, inconsistent, and based solely on the testimony of one witness under questionable circumstances. The court concluded that a retrial would not serve the interests of justice, as the available evidence was insufficient to sustain a conviction and a retrial would prejudice the appellant. Accordingly, the conviction was quashed, the sentence set aside, and the appellant ordered to be released...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 501 of 2003
(From original conviction (s) and Sentence(s) in Criminal case No. 2564 of 2003 of the Chief Magistrate’s Court at Nairobi (Ms. Siganga – S.R.M.)
JOSEPH NGANGA NGURE….…..…………....................................…..….…..APPELLANT
VERSUS
REPUBLIC…………….................……………….……..................…….…....RESPONDENT
J U D G M E N T
JOSEPH NGANGA NGURE was convicted in two counts of ROBBERY WITH VIOLENCE contrary to Section 296(2) of the Penal Code and detained under the Presidents pleasure as he was a minor at the time of the commission of the offence. He lodged this appeal to this court having been dissatisfied with the conviction and by implication the sentence
When this appeal came up for hearing, MRS. OBUO, learned counsel for the State conceded to the appeal. The learned counsel submitted that he trial before the lower court was defective since the prosecutor who conducted the prosecution was unqualified to do so under Section 85(2) as read with Section 88of the Criminal Procedure Code.
We have perused the record of the proceedings and have confirmed that one CPL. Osiemo who was the prosecutor was not qualified to do so. Consequently this rendered the entire proceedings a nullity. See ELIREMA & ANOTHER vs. REPUBLIC (2003) KLR 537. Accordingly we quash the conviction and set aside the sentence.
MRS. OBUO did not ask us to order a retrial. Counsel submitted that there was only one eye witness, PW1, who said he identified the Appellant. Counsel submitted that the circumstances of identification were not good. Further more, learned counsel continued, the arrest was effected after a chase and PW1 did not state whether or not he had lost sight of the attackers before the Appellant was apprehended.
We have considered the evidence adduced in the lower court in order to form an opinion whether it could result in a conviction if we ordered a retrial. See MWANGI vs. REPUBLIC 1983 KLR 522. It is true that the Appellant was identified only by PW1. PW1 was the second victim of the attack on the night in question. He had left a colleague outside their plot at 11. 00 p.m. to get a jacket. He went back to find his colleague, PW3 lying on ground being robbed. He too was robbed. Their neighbour PW2 heard the commotion and on going out the robbers ran away in different directions but not before injuring him and leaving behind a toy pistol. There is inconsistency concerning the Appellant’s arrest; whether he was arrested soon after the robbery after a chase as PW1 and PW2 said, or whether he was apprehended an hour later when PW1, PW2 and other neighbours suspected him as PW3 said. It seems PW3’s version may be true because, after he and PW1 were robbed, it was decided that he, PW3, using his motorbike, should take the toy pistol to the Police Station which he did. By the time PW3 left for the Police Station the robbers had ran away and no one had been apprehended. Hence it is our view that the evidence adduced before the Court, if it was adduced again in a retrial, will not result in a conviction. It would cause the Appellant prejudice to order a retrial in the circumstances. We are satisfied that the interests of justice do not require a retrial. We decline to order a retrial in this case and instead order that the Appellant should be set free unless he is otherwise lawfully held.
Dated at Nairobi this 18th day of July 2006.
…………………………
LESIIT, J.
JUDGE
………………………..
MAKHANDIA
JUDGE
Read, signed and delivered in the presence of;
Appellant(s) present
Mrs. Obuo for the State
Erick/Tabitha – Court clerks
…………………………
LESIIT, J.
JUDGE
………………………..
MAKHANDIA
JUDGE