[2004] KEHC 1773 (KLR)
The High Court found that the original trial was a nullity because the District Magistrate II lacked jurisdiction to try the offence of attempted robbery with violence and the public prosecutor was unauthorized under section 85(2) of the Criminal Procedure Code. These defects rendered the proceedings invalid. The...
Source-derived case information.
- Citation
- [2004] KEHC 1773 (KLR)
- Parties
- Appellant: Rashid Said Mwangula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 2456 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
- Outcome
- Appeal allowed; conviction quashed; sentence set aside; retrial ordered.
- Legal Topics
- Jurisdiction of Magistrate, Unauthorized Prosecutor, Retrial Principles, Attempted Robbery With Violence, Defective Trial Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Said Mwangula
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to try the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code.
- 2 Whether the public prosecutor who conducted the proceedings was authorized under section 85(2) of the Criminal Procedure Code.
- 3 Whether the proceedings in the lower court were a nullity due to jurisdictional and prosecutorial defects.
Ratio Decidendi
The High Court found that the original trial was a nullity because the District Magistrate II lacked jurisdiction to try the offence of attempted robbery with violence and the public prosecutor was unauthorized under section 85(2) of the Criminal Procedure Code. These defects rendered the proceedings invalid. The court considered whether a retrial was appropriate, applying the principles that a retrial should only be ordered where the original trial was defective and the interests of justice require it, and not to allow the prosecution to fill gaps in its case. Upon reviewing the evidence, the court concluded that there was sufficient material that could result in a conviction, possibly...
Court Disposition
Appeal allowed; conviction quashed; sentence set aside; retrial ordered.
Orders
- The conviction is quashed and the sentence set aside.
- The appellant shall remain in custody to be brought within 14 days before a competent court for a fresh trial.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
H.C.CR. APPEAL NO. 79 OF 2003
(Being an appeal from Original Criminal Conviction and sentence in Criminal Case No.2456 of 2002 of the Senior Resident Magistrate's Court at Kwale – L.N. Mbatia, SRM)
RASHID SAID MWANGULA ………………………….………………………………………APPELLANT
VERSUS
REPUBLIC ……………………………………………………………….……………….. RESPONDENT
Coram: Before Hon. Mr. Justice Mwera
Hon. Mr. Justice Maraga
Miss Mwaniki for the State
Gakuhi for the appellant
Court clerk – Chege
J U D G E M E N T
This appeal came up for hearing on 18. 5.04. Mr. Gakuhi for the appellant pointed out that on 16. 12. 2002 his client appeared before a District Magistrate II (Prof) S.S. Maindi for a plea to the charge of attempted robbery with violence contrary to section 297(2) Penal Code. That the public prosecutor was one P.C. Yegon. That on both aspects the proceedings at this starting point of a trial, were a nullity. That the learned District Magistrate lacked jurisdiction (See First Schedule to the Criminal procedure Code pp.140), while the prosecutor was an unauthorized officer as per S.85(2) Criminal Procedure Code (see also the case of Roy Elirema & Anr. V. R Cr.A. No.67/2002)
The learned State Attorney who conceded the appeal on these points nonetheless asked us to order a retrial herein.
Mr. Gakuhi opposed a retrial arguing that as per the charge sheet and evidence there was no attempt to steal any household item from the complainant. That the alleged thugs approached the complainants door, apparently with intention to enter, this was at about 3 a.m. but he pushed them back and closed the door. That the intruders did not take or demand anything from the complainant. That probably the charge to lay should have been attempted house-breaking and burglary. And that the complainant was not even wounded.
The State’s position was that the trial in the lower court was defective and in citing FATENALI MAJI VS. R. (1966) E.A. 343, we were told that in such a state of things a retrial is warranted. That the appellant was caught within the compound of the complainant holding a stone (an offensive or dangerous weapon) which had been used to smash the door. That at this late or early hour, the circumstances in which the appellant was found he had even tried a T-shirt round his head, it should be clear that the intention of the thugs was to rob the complainant. That the State was not going to use the retrial to seal holes in its case but that interest of justice warranted a retrial. That witnesses would avail.
We have gone over the evidence on the lower court record, reviewed the submissions of counsel and also referred to S.297(2) Penal Code which incorporates the element of wounding, striking or using violence to the victim. We have come to a conclusion that the evidence is such as may result in a conviction. It could be a conviction of a less offence than charged but still the evidence is worth being heard afresh and may the trial magistrate arrive at the decision he/she does.
In arriving at this conclusion, we appreciate that the power to order a retrial as conferred upon us under S.354 (3) (a) (i) Criminal Procedure Code is a very wide one indeed. It requires however to be exercised judicially. That in each case even as it is considered on its own merits nonetheless, it should appear that evidence, potential or taken, is likely to lead to a conviction. We also are alive to the following principles:
“------- in general a retrial will be ordered when the original trial was illegal or defective; it will not be ordered where a conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to accused persons.”
(See the Fatehali case above pp 344 G, H.)
In sum the appeal having been conceded as said above is allowed. The conviction is quashed and the sentence set aside. But the appellant will remain in custody to be brought in 14 days before a competent court to stand a fresh trial.
Judgement delivered on 15th June, 2004.
J.W. MWERA
JUDGE
D. MARAGA
AG. JUDGE