[2005] KEHC 1703 (KLR)
The court found that the prosecution in the trial court was conducted by a corporal, a police officer below the rank of inspector, contrary to section 85(2) of the Criminal Procedure Code. As such, the proceedings were a nullity and could not be used to sustain a conviction. Both parties agreed on this point, and...
Source-derived case information.
- Citation
- [2005] KEHC 1703 (KLR)
- Parties
- Appellant: Joseph Wanjala Khaoya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 131 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Unauthorized Prosecution, Stealing by Servant, Criminal Procedure Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wanjala Khaoya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution was conducted by an unauthorized person contrary to section 85(2) of the Criminal Procedure Code.
- 2 Whether the conviction and sentence could stand where the prosecution was a nullity.
Ratio Decidendi
The court found that the prosecution in the trial court was conducted by a corporal, a police officer below the rank of inspector, contrary to section 85(2) of the Criminal Procedure Code. As such, the proceedings were a nullity and could not be used to sustain a conviction. Both parties agreed on this point, and the court held that the conviction must be quashed and the sentence set aside. Any fine paid by the appellant was to be refunded forthwith.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
7 paragraphs
IN THE HIGH COURT OF KENYA AT BUNGOMA Criminal Appeal 131 of 2001 Arising from Webuye SRM Cr. Case No. 29 of 2001 JOSEPH WANJALA KHAOYA……………….………….APPLICANT VS REPUBLIC………………………………………..….….RESPONDENT J U D G ME N T
The appellant was convicted for the offence of stealing by servant contrary to section 281 of the Penal Code. He was then sentenced to pay a fine of Ksh. 30,000 or in default to serve 1 year imprisonment.
On appeal, Mr. Khakula who appeared for the appellant only argued one ground of appeal that is that the prosecution before the trial court was conducted by an unauthorized prosecutor. Mr. Onderi, the learned senior state counsel conceded the appeal on the same ground.
The record of appeal reveals that the prosecution before the trial court was represented by one corporal Nyongesa.The law under S. 85 (2) of the criminal procedure code does not permit police officers below the rank of an inspector to be appointed to prosecute criminal cases on behalf of the A.G. hence the proceedings before the trial court were a nullity and incapable of being used to sustain a conviction .
The upshot therefore is that the appeal succeeds with a resultant order that the conviction is quashed and the sentence is set aside. The fine if paid should be refunded forthwith.
DATED AND DELIVERED THIS 25th DAY OF February 2005
J.K. SERGON JUDGE