[2004] KEHC 814 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS APPEALLATE SIDE CRIMINAL APPEAL NO. 229 OF 2002

(From Original Conviction and Sentence in Criminal Case No. 228 of 2002 of the Senior Resident Magistrate’s Court at Kangundo: B. Maloba (Miss) on 23. 10. 2002)

PIUS MBITHI KYUMA ............................................... APPELLANT

VERSUS

REPUBLIC ................................................................... RESPONDENT

J U D G E M E N T

The appellant PIUS MBITHI KYUMA was convicted of one count of ROBBERY WITH VIOLENCE contrary to section 296 (2) of the Penal Code. He was sentenced to death as mandatory prescribed by the law. Being aggrieved by the conviction and the sentence, he lodged this appeal.

Mr. O’mirera conceded in his submissions that the prosecution of the case at the trial was defective on account of an unqualified police officer having conducted most of the prosecution. That point was first raised by the appellant in his submission asking that he be set free on grounds that by reason of such unqualified prosecution conducted against him before the trial court, he had suffered prejudice.

We have on our part perused through the proceedings of the trial court. We have confirmed that indeed the prosecution was conducted by an unqualified public prosecutor in contravention of Sections 85 (2) and 88 of the Criminal Procedure Code. Such prosecution raises the proceedings defective, null and void and ought to be unvalidated. That was the Court of Appeal holding in the now celebrated case ofROY RICHARD ELIREMA AND ANOTHER V. REPUBLIC MOMBASA C.A. NO. 67 of 2002. Accordingly we declare the proceedings before the trial court unvalidated and we quash the conviction and set aside the sentence.

On whether or not to order a retrial, the appellant urged the court to set him free on grounds that the evidence adduced before the trial court was insufficient to sustain a conviction. It was his submission that the circumstances of identification were not conducive to positive identification.

O’mirera, Learned Counsel for the State was of a totally different view and we shall consider each view separately.

The question whether the evidence of identification is sufficient is a matter of fact we have re-evaluated the evidence adduced before the court. Generally, considering all other evidence in addition to that of identification we are of the considered view that result in a conviction. InMWANGI V. REPUBLIC 1983 EA 52, the Court of Appeal held that a retrial should not be ordered if infact the admissible or potentially admissible evidence, once properly considered, may not result in a conviction.

It was O’mirera’s submission that the witnesses in the case were locals and were easily available to testify if a retrial were ordered. Only the prosecution can submit on the availability of witnesses being better placed to tell whether they are traceable to testify.

In the case of ELIREMA (Supra), the Court of Appeal declined to order a retrial on the grounds that the witnesses were foreigners who may not have been traced to testify in a retrial. We are satisfied that the witnesses in the constant case are locals and could be availed for a retrial.

We have also considered that the offence was committed in April 2002 and that the appellant has been in remand custody for 2 years 6 months. We have also considered the seriousness of the offence. We are aware of the Court of Appeal ruling in PIUS OLIMA VS. ANOTHER V. REPUBLIC CA No.110 of 1991 unreported. In the judgement of AKIWUNI Judge of Appeal, he observed this:-

“The principles which emerge are that a retrial may be ordered where the original trial, as was found in the High Court and with which we agree, is defective, the interests of justice so require and if no prejudice is caused to the accused. Whether an order for trial should be made ultimately depends on the particular facts and circumstances of each case.”

We are satisfied that the interest of justice does require that an order for trial be made in this case. We are also satisfied that the appellant will not suffer any prejudice if the said order is made.

The upshot of this appeal is that we do order a retrial to be held in this case. In that regard we order that the appellant be held in custody until when he should be produced before the Chief Magistrate’s Court Machakos for a plea to the charge.

Orders accordingly.

Dated at Machakos this 17th day of November 2004.

J. W. LESIIT

JUDGE

R. V. WENDOH

JUDGE