[2006] KEHC 2185 (KLR)
The court found that the trial magistrate's failure to indicate the coram on the hearing date made it impossible to ascertain the constitution of the court and the qualification of the prosecutor, as required by law. This procedural omission rendered the entire proceedings a nullity, necessitating the setting aside...
Source-derived case information.
- Citation
- [2006] KEHC 2185 (KLR)
- Parties
- Appellant: Paul Njunge Mubea; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 373 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held.
- Judges
- MSA Makhandia
- Legal Topics
- Nullity of Proceedings, Coram Requirements, Retrial Principles, Double Jeopardy, Prosecutorial Qualification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Njunge Mubea
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omission to indicate the coram of the court on the hearing date rendered the proceedings a nullity.
- 2 Whether a retrial should be ordered after the proceedings were found to be a nullity.
- 3 Whether ordering a retrial would prejudice the appellant or amount to double jeopardy.
Ratio Decidendi
The court found that the trial magistrate's failure to indicate the coram on the hearing date made it impossible to ascertain the constitution of the court and the qualification of the prosecutor, as required by law. This procedural omission rendered the entire proceedings a nullity, necessitating the setting aside of both conviction and sentence. Although the evidence against the appellant was overwhelming and could justify a retrial, the appellant had already served nearly two years of a three-year sentence, and with remission, was due for release. Ordering a retrial in these circumstances would prejudice the appellant and potentially expose him to double jeopardy. Therefore, the court...
Court Disposition
Appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held.
Orders
- The proceedings in the subordinate court are annulled and both conviction and sentence are set aside.
- No order for retrial is made.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 373 of 2004
(From Original Conviction and Sentence in Criminal Case No.25406 of 2002 of the Chief Magistrate’s Court at Nairobi).
PAUL NJUNGE MUBEA ……. .…………..........................………...………..APPELLANT
VERSUS
REPUBLIC……………………………….......................…………….....….RESPONDENT
JUDGMENT
PAUL NJUNGE MUBEA was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code. He was after trial found guilty, convicted and sentenced to three years imprisonment. He was aggrieved by the conviction and sentence and hence lodged the instant Appeal.
When the Appeal came up for hearing, Mrs. Kagiri, Learned State Counsel conceded to the same. It was the Counsel’s submissions that on 25th June, 2004 when the case came up for hearing for the first time, the Leaned trial Magistrate failed to indicate the coram of the Court for that day. The coram merely read “Coram as before” In those circumstances it was not possible to tell who constituted the Court and who the Prosecutor was. Relying on the Court of Appeal decision in BENARD LOLIMO EKIMAT VS REPUBLIC, CRIMINAL APPEAL NO. 151 OF 2004 (ELDORET) (UNREPORT),Counsel submitted that the proceedings were thereby rendered a nullity. Counsel invited me to so hold.
Thereafter Counsel then invited me to consider ordering a retrial. Counsel submitted in support of her position that the evidence on record against the Appellant was overwhelming. That the Appellant deliberately and unlawfully attacked and stabbed the Complainant with a knife leading to the collapse of one of his lungs. The evidence was well corroborated, that the conduct of the Appellant before and after the attack showed that he had no remorse at all regarding the incident. Counsel pointed out that, the Appellant will not be prejudiced if a retrial is ordered. Indeed such an order will serve to advance the cause of justice. On his part the Appellant merely stated that he was seeking reduction of the sentence.
I have carefully perused the original and typed record of the proceedings of the subordinate Court and confirmed that indeed what the Learned State Counsel ahs pointed out as her ground for conceding to the Appeal is borne out by the record. Due to that omission on the part of the Learned trial Magistrate, it is difficult to determine whether there was s Prosecutor who conducted the case on behalf of the prosecution on that day and if so, whether he was qualified as required under Section 85 (2) as read together with Section 88 of the criminal Procedure code. As the Court of Appeal held in the celebrated case of BENARD LOLIMO EKIMAT(supra) such an omission renders the proceedings rendered a nullity. Accordingly I annul the proceedings and set aside both the conviction and sentence.
I have carefully perused the evidence recorded to satisfy myself as to the tenability of the Prosecution case. No doubt the evidence against the Appellant was overwhelming. The evidence of identification was given by more than two witnesses and was adequately corroborated. Further the incident took place in broad day light. Such evidence if re-tendered during the re-trial will no doubt result into a conviction. (See MWANGI VS REPUBLIC 1983 KLR 527).
However, I note that the Appellant was sentenced to 3 years imprisonment on 21sst July, 2004. To date he has therefore served close to 2 years of his jail term. With remission, the Appellant should be out of prison any time now. If a retrial is ordered in the circumstances, it will prejudice and indeed occasion injustice to the Appellant. The possibility that the Appellant may be exposed to double jeopardy cannot be gain said. (See SUMAR VS REPUBLIC 1964 EA 451and MERALI & OTHERS VS REPUBLIC 1971 EA 221.
For the foregoing reasons, I decline to make an order for retrial. Instead I order that the Appellant be set at liberty forthwith unless held for other lawful cause.
Dated at Nairobi this 14th day of June, 2006.
………………………….
MAKHANDIA
JUDGE