Kenya Judgment

High Court · High Court at Mombasa

JUMAA GANADZA v REPUBLIC [2003] KEHC 438 (KLR)

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Professional case brief

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Source document

01

Holding and result

The court found that the trial was a nullity because it was prosecuted by an unauthorised person, contrary to Section 85(2) of the Criminal Procedure Code. Additionally, the charge was fatally defective as it alleged a false pretence relating to a future event, which does not meet the statutory definition under Section 312 of the Penal Code. Both defects rendered the conviction unlawful. The court quashed the conviction, set aside the sentence, and ordered a refund of any fine paid. The court declined to order a retrial, noting the charge's fatal defect and the civil nature of the underlying transaction.

Court disposition

appeal_allowed

Orders

  • The conviction of the appellant is quashed.
  • The sentence is set aside.
  • If the fine of KSh.20,000/- was paid, it is to be refunded forthwith to the appellant.
  • No retrial is ordered.

02

Material facts

Parties

Jumaa Ganadza

Appellant Counsel: Khatib & Co. Advocates

Republic

Respondent Counsel: Miss Kwena

Amounts and remedies

  • Fine Imposed by Trial Court: KES 20,000
  • Amount Allegedly Obtained by False Pretence: KES 53,000

03

Procedural history

  1. Posture

    Criminal Appeal / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant, through counsel, argued that the prosecution was conducted by an unauthorised person, namely Police Constable Mukonesi, contrary to Section 85(2) of the Criminal Procedure Code, rendering the trial a nullity. Further, the charge was fatally defective as the alleged false pretence related to a future event, not a past or present fact as required by Section 312 of the Penal Code.
Respondent
The respondent, through learned State Counsel Miss Kwena, conceded that the prosecution was conducted by an unauthorised prosecutor. She applied for a retrial but did not contest the defects in the charge sheet.

05

Court’s reasoning

  1. 01

    Section 85(2), Criminal Procedure Code; case law precedent.

    A criminal trial prosecuted by an unauthorised person is a nullity and any conviction arising therefrom is unlawful.

  2. 02

    Section 312, Penal Code (Kenya).

    A false pretence under the Penal Code must relate to a past or present fact, not a future event.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the trial was a nullity because it was prosecuted by an unauthorised person, contrary to Section 85(2) of the Criminal Procedure Code. Additionally, the charge was fatally defective as it alleged a false pretence relating to a future event, which does not meet the statutory definition under Section 312 of the Penal Code. Both defects rendered the conviction unlawful. The court quashed the conviction, set aside the sentence, and ordered a refund of any fine paid. The court declined to order a retrial, noting the charge's fatal defect and the civil nature of the underlying transaction.

Obiter and limits

  • The transaction between the appellant and the complainant was purely of a civil nature.
  • A retrial is not appropriate where the charge is fatally defective and the underlying dispute is civil.

Court disposition

appeal_allowed

  • The conviction of the appellant is quashed.
  • The sentence is set aside.
  • If the fine of KSh.20,000/- was paid, it is to be refunded forthwith to the appellant.
  • No retrial is ordered.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2003] KEHC 438 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

APPELLATE SIDE

CRIMINAL APPEAL NO.183 OF 2002

(From Original conviction and sentence in CriminalCase

No.661 of 2000 of the Chief Magistrate’s Court, Mombasa)

JUMAA GANADZA.......................................................APPELLANT

VERSUS

REPUBLIC.................................................................RESPONDENT

J U D G M E N T

Jumaa Ganadza, the appellant, was convicted of the offence of Obtaining by false pretences contrary to Section 313 of the Penal Code in that on the 7th December 1999 at Kolongoni Village in Kilifi District within Coast province, with intent to defraud, obtained KSh.53,000/- from Kahindi Chande by falsely pretending that “You will sell to him two coins of Queen Elizabeth II”. He was fined KSh.20,000/- in default he was ordered to serve twelve months imprisonment. This appeal filed through M/s Khatib & Co. Advocates is against both conviction and sentence.

Mr. Khatib advocate, at the outset, has pointed to the court that the prosecution of the case was conducted by unauthorised public prosecutor, one Police Constable Mukonesi, contrary to the provisions of Section 85(2) of the Criminal Procedure Code, a matter which Miss Kwena, learned State Counsel, has conceded.

A Criminal trial in which unauthorised public Prosecutor conducts the prosecution’s case is a nullity and a conviction recorded against an accused person in such a trial is unlawful. Therefore the trial of the appellant was a nullity and the conviction recorded against him is unlawful.

There is a second reason why this conviction is unlawful. It is based on a fatally defective charge by reason of the fact that the alleged false pretence relates to a future transaction contrary to section 312 of the Penal Code which defines a false pretence to relate only to either a past or present matter of fact in the following terms:-

“Section 312 : Any representation made by words, writing or conduct, of a matter of fact, either past or present , which representation is false in fact, and which the person making it knows to be false or does no t believe to be true, is a false pretence.”

The false pretence or false representation recorded in the particulars of the offence in the charge sheet relates to a matter of fact of the future in the following words:

“by falsely pretending that you will s ell to him two coins of Queen Elizabeth II.”

On these two legal points this appeal succeeds, the conviction of the appellant is quashed and the sentence is set aside. If the fine of Sh.20,000/- was paid, it is to be refunded forthwith to the appellant.

Miss Kwena has applied for a retrial. However, as I have held herein above the charge was fatally defective. Besides the transaction was purely of a civil nature between the appellant and the complainant. I consequently decline to order a retrial.

Dated this 17th September 2003.

A.G.A. ETYANG

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 85(2), Criminal Procedure Code (Kenya)

Legislation

Legislation referenced in the available case record.

Section 312, Penal Code (Kenya)

Legislation

Legislation referenced in the available case record.

Section 313, Penal Code (Kenya)

Legislation

Legislation referenced in the available case record.

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