[2004] KEHC 1121 (KLR)
The court found that the original trial was a nullity because it was prosecuted by a Police Constable, contrary to Section 85 of the Criminal Procedure Code, which requires that prosecutions in the Magistrate's Court be conducted by a qualified prosecutor. Given the seriousness of the offence (defilement of a young...
Source-derived case information.
- Citation
- [2004] KEHC 1121 (KLR)
- Parties
- Appellant: Mwamengi Kiseu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 144 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed; conviction set aside; retrial ordered
- Legal Topics
- Defilement, Prosecution Irregularity, Retrial, Criminal Procedure Code Section 85
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwamengi Kiseu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial was a nullity due to prosecution by an unauthorized person contrary to Section 85 of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered given the seriousness of the offence and the time already served by the appellant.
Ratio Decidendi
The court found that the original trial was a nullity because it was prosecuted by a Police Constable, contrary to Section 85 of the Criminal Procedure Code, which requires that prosecutions in the Magistrate's Court be conducted by a qualified prosecutor. Given the seriousness of the offence (defilement of a young child) and the fact that the appellant had only served a small portion of his sentence, the court determined that a retrial was appropriate and would not prejudice the appellant. The conviction was set aside and a retrial ordered before a different magistrate.
Court Disposition
appeal allowed; conviction set aside; retrial ordered
Orders
- The appeal is allowed and the conviction is set aside.
- A retrial is ordered in the Chief Magistrate’s Court at Mombasa before a different Trial Magistrate.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 144 OF 2002
(From Original Conviction and Sentence in Criminal Case No.9 of 2002 of the Senior Magistrate’s Court at Mombasa – E.N. Maina – S.R.M.)MWAMENGI KISEU…………………………………………APPELLANT V E R S U S REPUBLIC…………………………………………………RESPONDENT
J U D G M E N T
The Appellant was tried in a trial which is now a nullity because of prosecution by a Police Constable contrary to Section 85 Criminal Procedure Code.
The State concedes the appeal but requests for a retrial. I am convinced that the offence is serious involving defilement of a young child. The Appellant has issued only 2 years of 10 year term in jail.
In the circumstances, the Appellant cannot be let off with such light sentence. Sentence. However, he is setting a chance of being tried again by another court. In the circumstances, he will suffer no prejudice.
I therefore allow the prosecution prayer that the Appellant be retried. This appeal is allowed and conviction set aside.
I order a re-trial in Chief Magistrate’s Court at Mombasa before a different Trial Magistrate.
This matter shall be mentioned before Chief Magistrate on 31/3/2004.
Dated at Mombasa this 29th day of March, 2004.
JOYCE KHAMINWA J U D G E