[2005] KEHC 1234 (KLR)
The court found that the trial in the lower court was a nullity because it was prosecuted by a police constable who was not a competent prosecutor under section 85(2) of the Criminal Procedure Code. Although the evidence adduced could have supported a conviction if the trial had been properly conducted, the...
Source-derived case information.
- Citation
- [2005] KEHC 1234 (KLR)
- Parties
- Appellant: Joshua Mutinda Musau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 76 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GG Okwengu
- Legal Topics
- Defilement, Indecent Assault, Criminal Procedure, Competence of Prosecutor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mutinda Musau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial in the lower court was a nullity due to prosecution by an incompetent person under section 85(2) of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered given the sufficiency of evidence and time already served by the appellant.
Ratio Decidendi
The court found that the trial in the lower court was a nullity because it was prosecuted by a police constable who was not a competent prosecutor under section 85(2) of the Criminal Procedure Code. Although the evidence adduced could have supported a conviction if the trial had been properly conducted, the appellant had already served a significant portion of his sentence before being released on bail pending appeal. The court determined that ordering a retrial in these circumstances would not be fair or just. Consequently, the appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 76 of 2003
JOSHUA MUTINDA MUSAU ………………………………………… APPELLANT
VERSUS
REPUBLIC …………………………………………………………… RESPONDENT
(Appeal from original Judgment and Conviction in Resident Magistrate’s Court at Baricho in Criminal Case No. 977 of 2002 dated 10th March 2002 by Mr. J. M. Githaiga – R.M. – Baricho)
J U D G M E N T
Joshua Mutinda Musau hereinafter referred to as the appellant was charged before the Resident Magistrate Baricho for the offence of Defilement of a girl contrary to section 145 (1) of the Penal Code. He was convicted of the lesser charge of indecent assault contrary to section 144 (1) of the Penal Code and sentenced on the 10th March 2003 to serve hard labour and 2 strokes of the cane. Being dissatisfied the appellant has lodged this appeal against his conviction and sentence. Learned State Counsel Ms Ngalyuka has conceded this appeal and in my view rightly so. The trial in the lower court was a nullity the case having been prosecuted by one P.C. Ragwa who was not a competent person under section 85 (2) of the Criminal Procedure Code.
Ms Ngalyuka however urges this court to order a retrial. Mr. Kahiga who appeared for the appellant strenuously opposed the application contending that the evidence adduced against the appellant was not sufficient to prove the case against the appellant as the evidence of the complainant was not corroborated.
Having considered the evidence that was adduced before the trial magistrate, I am satisfied that the evidence was sufficient to support the conviction had the trial been properly conducted. Nevertheless it is evident that out of the sentence of 3 years which was imposed upon him, the appellant served 1 year before he was released on bail pending appeal. An order for retrial would therefore not be fair nor just.
I do therefore allow the appeal, quash the conviction and set aside the sentence imposed upon the appellant.
The appellant shall therefore be forthwith set free unless otherwise lawfully held.
Dated signed and delivered this 28th November 2005
H. M. OKWENGU
JUDGE