[2004] KEHC 1815 (KLR)
The court found that the prosecution in the lower court was conducted by a police constable, an unqualified person under the law. Relying on the Court of Appeal decision in Criminal Appeal No. 217 of 2003, the court held that such a prosecution renders the proceedings a nullity and gives the appeal high chances of...
Source-derived case information.
- Citation
- [2004] KEHC 1815 (KLR)
- Parties
- Appellant: Peter Ayora Masaki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 348 of 2003
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Legal Topics
- Prosecution by Unqualified Person, Bail Pending Appeal, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ayora Masaki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the prosecution in the lower court was conducted by a qualified person as required by law.
- 2 Whether the appeal has high chances of success based on the ground of unqualified prosecution.
- 3 Whether the appellant should be released on bail pending appeal.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by a police constable, an unqualified person under the law. Relying on the Court of Appeal decision in Criminal Appeal No. 217 of 2003, the court held that such a prosecution renders the proceedings a nullity and gives the appeal high chances of success. Considering that the appellant had already served about three months in jail, the court deemed the application for bail pending appeal reasonable and allowed it, ordering the appellant's release on bond.
Court Disposition
Application for bail pending appeal allowed.
Orders
- Accused to be released on his own bond of KES 20,000 with one surety of similar amount.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.348 OF 2003
(From original conviction and sentence of the Senior Resident Magistrate’s
court at Nyamira in Criminal Case No.805 of 2003 – MR. PETER MULWE ESQ.,D.M.II)
PETER AYORA MASAKI …………………………………….. APPELLANT VERSUS REPUBLIC ……………………………………………………. RESPONDENT
RULING
I have considered the application and objection. I too gone through the proceeding and memorandum of appeal. One ground of appeal is that the prosecution in the lower court was conducted by a police constable who is an unqualified person. This court is line to the court of appeal decision in CR. APPL. NO.217 OF 2003. I think in the light of that decision the appeal has high chances of success. The appellant has been in jail for about 3 months now. I find the application is reasonable and allowthesame.Accused be released on his own bond of shs.20,000/= with one surety of similar amount.
Dated and delivered on 3rd March 2004.
KABURU BAUNIJUDGE.
Mr. Soire H/B for Mr. Mogere for Applicant