[2005] KEHC 1990 (KLR)
The court found that the prosecution in the trial court was conducted by a corporal, who was not authorized under section 85(2) of the Criminal Procedure Code to prosecute on behalf of the Attorney General. As a result, the entire proceedings were a nullity and could not be used to sustain a conviction. The appeal...
Source-derived case information.
- Citation
- [2005] KEHC 1990 (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
- Stealing by Servant, Unauthorized Prosecution, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
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 the law.
- 2 Whether the proceedings before the trial court were a nullity due to improper prosecution.
Ratio Decidendi
The court found that the prosecution in the trial court was conducted by a corporal, who was not authorized under section 85(2) of the Criminal Procedure Code to prosecute on behalf of the Attorney General. As a result, the entire proceedings were a nullity and could not be used to sustain a conviction. The appeal was allowed, the conviction quashed, and the sentence set aside. Any fine paid was ordered to be refunded.
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