[2004] KEHC 1974 (KLR)
The court found that the original trial was a mistrial because part of the prosecution was conducted by a police constable, contrary to section 85(2) of the Criminal Procedure Code. The conviction and sentence were therefore set aside. However, considering the seriousness of the offence, the sufficiency of evidence,...
Source-derived case information.
- Citation
- [2004] KEHC 1974 (KLR)
- Parties
- Appellant: Katembo Muthoga Mutura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 48 of 2003
- Procedural Posture
- Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
- Outcome
- Conviction and sentence set aside; retrial ordered.
- Legal Topics
- Unnatural Offence, Trial Irregularity, Retrial Principles, Criminal Procedure, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katembo Muthoga Mutura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the trial was defective due to prosecution by an unqualified person contrary to section 85(2) of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered after setting aside the conviction and sentence.
Ratio Decidendi
The court found that the original trial was a mistrial because part of the prosecution was conducted by a police constable, contrary to section 85(2) of the Criminal Procedure Code. The conviction and sentence were therefore set aside. However, considering the seriousness of the offence, the sufficiency of evidence, and the need to avoid injustice to the complainant, the court determined that a retrial was appropriate. The court weighed the period already spent in custody by the appellant and the gravity of the offence, concluding that a retrial would not cause injustice to the appellant and was necessary to serve the interests of justice.
Court Disposition
Conviction and sentence set aside; retrial ordered.
Orders
- The appellant's conviction and sentence are set aside.
- The appellant shall be retried for the offence before another magistrate of competent jurisdiction.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 48 OF 2003
(From Original Conviction and Sentence in Criminal Case No. 1305 of 2002 of the Senior Resident Magistrate’s Court at Kwale L.N. Mbatia, SRM)
KATEMBO MUTHOGA MUTURA ……………….…… APPELLANT
Versus
REPUBLIC ……………………………………………… RESPONDENT
R U L I N G
The Appellant was tried and convicted on the offence of unnatural offence contrary to section 162(a) of the Penal Code and sentenced to seven years imprisonment with 4 strokes of the cane. He now appeals to this court against the conviction and sentence.
Mr. Monda, learned State Counsel conceded the appeal on the grounded that part of the prosecution case was conducted by police constable Yegon contrary to section 85(2) of the Criminal Procedure Code. That being the case I declare the Appellant’s trial before the subordinate court a mistrial. Consequently I set aside the conviction and the sentence imposed on the Appellant.
Mr. Monda argued that the offence with which the Appellant was charged was serious. He asked for a retrial. He said that there is ample evidence upon which the Appellant was convicted.
A retrial is normally ordered where the original trial was illegal or defective and where there is evidence which if adduced at the retrial may result to a conviction. Even with all those a retrial will not be ordered if it will cause an injustice to the Appellant.
I have perused the lower court record. The Appellant sodomised his neighbour’s mentally handicapped son. The son although handicapped gave very clear evidence. The doctor who examined him corroborated that evidence. He found spermatozoa in complainant’s anus. The Appellant took advantage of the mental handicap of the neighbour’s son, sodomised him and even took him to the river and ordered him to bathe which he did. This was obviously to destroy evidence. It will be an injustice to the complainant if the appellant is let free on a technicality. The Appellant has been in prison for slightly over a year. But he must know that the offence he committed carries an imprisonment term of 14 years.
For these reasons I order that the Appellant be retried for the offence before another magistrate of competent jurisdiction.
DATED this 8th day of June 2004.
D.K. Maraga
Ag. JUDGE