[2004] KEHC 711 (KLR)
The court found that the prosecution in the original trial was conducted by a person not qualified under Section 85(2) of the Criminal Procedure Code, rendering the entire trial a nullity. In line with established precedent, particularly the court's own previous decisions in Embu H.C. Criminal Appeals No. 71 of 2000...
Source-derived case information.
- Citation
- [2004] KEHC 711 (KLR)
- Parties
- Appellant: Margaret Wanjiru Kariuki; Appellant: Grace Wanjiku Kanyonyo; Appellant: Lucy Wanjiku Kariuki; Appellant: Ann Wanjiru Kihoro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 46,47,48 & 45 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeals allowed; convictions quashed; sentences set aside; fines to be refunded; no retrial ordered
- Legal Topics
- Unqualified Prosecutor, Nullity of Trial, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wanjiru Kariuki
Appellant
Grace Wanjiku Kanyonyo
Appellant
Lucy Wanjiku Kariuki
Appellant
Ann Wanjiru Kihoro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial was a nullity due to the prosecutor not being qualified under Section 85(2) of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered when a trial is declared a nullity for want of a qualified prosecutor.
Ratio Decidendi
The court found that the prosecution in the original trial was conducted by a person not qualified under Section 85(2) of the Criminal Procedure Code, rendering the entire trial a nullity. In line with established precedent, particularly the court's own previous decisions in Embu H.C. Criminal Appeals No. 71 of 2000 and No. 18 of 2001, the court held that where a conviction is quashed on the ground that the trial was a nullity due to an unqualified prosecutor, a retrial should not be ordered. The appeals were therefore allowed, convictions quashed, sentences set aside, fines ordered to be refunded, and no retrial ordered.
Court Disposition
appeals allowed; convictions quashed; sentences set aside; fines to be refunded; no retrial ordered
Orders
- Each appeal is allowed.
- The conviction of each appellant is quashed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO. 46 OF 2003
MARGARET WANJIRU KARIUKI………………….………….....APPELLANT
Versus
REPUBLIC………………………………………………….……RESPONDENT
CRIMINAL APPEAL NO. 47 OF 2003
GRACE WANJIKU KANYONYO…………………..……………..APPELLANT
Versus
REPUBLIC……………………………………………..………..RESPONDENT
CRIMINAL APPEAL NO 48 OF 2003
LUCY WANJIKU KARIUKI……….………………………………APPELLANT
Versus
REPUBLIC……………………………………………….……...RESPONDENT
CRIMINAL APPEAL NO. 45 OF 2003
ANN WANJIRU KIHORO………………………………………...APPELLANT
Versus
REPUBLIC……………………………………………………....RESPONDENT
(Appeal against judgment by G. K. Mwaura,Senior Resident Magistrate, in the SeniorPrincipal Magistrate’s Court at Muranga,Criminal Case No. 935 of 2002).
JUDGMENT
The four appeals are consolidated.
From what has been stated above, the learned State Counsel concedes the appeals on the ground that the trial was a nullity because the prosecutor was not qualified in terms of Section 85 (2) of the Criminal Procedure Code.
That being the position, each appeal is hereby allowed, the conviction of each Appellant quashed and the sentence imposed on him set aside.
The fines paid by each Appellant be refunded.
On the issue of a retrial which the learned State Counsel has asked for, I cannot go against my judgments in previous cases, particularly in Embu H.C. Criminal Appeals No. 71 of 2000 and No. 18 of 2001 Pharis Mutembei Mutegi and Christopher Mutwiri Njokarespectively which are to the effect that where an appeal is allowed because the trial has been declared a nullity on the ground that the prosecutor was not qualified in terms of Section 85 (2) of the Criminal Procedure Code, there should be no retrial. The reasons for this are given in the previous judgments I have referred to.
Accordingly, I do order that there be no retrial.
Dated this 1st day of December 2004.
J. M. KHAMONI
JUDGE