[2006] KEHC 722 (KLR)
The court found that the trial in the lower court was a nullity because the prosecution was conducted by an unqualified person, as conceded by the State. However, upon reviewing the evidence, the court determined that it was insufficient to sustain a conviction and that the police investigation was biased, leading...
Source-derived case information.
- Citation
- [2006] KEHC 722 (KLR)
- Parties
- Appellant: Republic; Respondent: Nzioka Nzuki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 20 of 2005
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Acquittal; Application for Retrial
- Outcome
- Appeal dismissed; retrial refused; acquittal upheld.
- Judges
- DA Onyancha
- Legal Topics
- Grievous Harm, Prosecutorial Incompetence, Retrial Principles, Self Defence, Acquittal, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Nzioka Nzuki
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Acquittal; Application for Retrial
Legal Issues
- 1 Whether the trial was a nullity due to prosecution by an unqualified person under Section 85(2) of the Criminal Procedure Code.
- 2 Whether a retrial should be ordered after an acquittal where the original trial was a nullity.
- 3 Whether the evidence on record could sustain a conviction or justified the acquittal.
Ratio Decidendi
The court found that the trial in the lower court was a nullity because the prosecution was conducted by an unqualified person, as conceded by the State. However, upon reviewing the evidence, the court determined that it was insufficient to sustain a conviction and that the police investigation was biased, leading to an inappropriate charge. The court concluded that ordering a retrial would be unjustified and would violate the respondent's constitutional rights, as it would subject him to further jeopardy after acquittal without sufficient basis. Therefore, the appeal for a retrial was refused and the acquittal was upheld.
Court Disposition
Appeal dismissed; retrial refused; acquittal upheld.
Orders
- Retrial is refused.
- The acquittal of the respondent is upheld.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Criminal Appeal 20 of 2005
REPUBLIC …………………………………………… APPELLANT
VERSUS
NZIOKA NZUKI ………………………………….. RESPONDENT
(From the acquittal of S.R. Rotich Resident Magistrate in Tawa R.M. Cr. Case No. 52 of 2002)
J U D G E M E N T
The appellant had been charged with the offence of Causing Grievous Harm Contrary to section 234 of the Penal Code. After a full trial the trial court found that the prosecution had failed to prove the charge beyond a reasonable doubt and acquitted him. The state being aggrieved of the acquittal, appealed to this court
The grounds of appeal included one that the trial was a nullity, because the prosecution was conducted by a person not qualified to prosecute under Section 85 (2) of the Criminal Procedure Code, a ground the State conceded. The state then sought an order for retrial, stating that their evidence is intact, their witnesses are available and that it will be in the interest of justice to have a retrial.
The respondent who was represented by Mr Masika opposed the appeal. He argued that the fault not to competently and lawfully prosecute the lower court charge, was the state’s and therefore the state should not be allowed to rely on its own shortcoming to cause further suffering upon the respondent. He further argued that all the Criminal Procedure Code provisions, apart from providing a procedure through which justice would be established, are intended to protect the accused from being unfairly handled or treated during a trial. He also argued that the evidence on record established a conclusion that the accused was acting in self-defence and that incompetence of the prosecution aside, an acquittal would have still been arrived at.
I have carefully considered the evidence on the record and the conclusions the trial magistrate arrived at. The fact that the prosecution was conducted by a person not qualified to do so under Section 85 (2) of the Criminal Procedure Code is not denied. This court therefore has no hesitation in reaching the conclusion that the trial was a nullity. The court has also considered the actual evidence on record and arrived at the conclusion that it cannot as it stands possibly sustain a conviction. The evidence indicates that the police investigation was one-sided and clearly biased, leading to a wrong charge of grievous harm being preferred against the appellant, instead of the one of affray. Indeed it would even appear that the complainant in the lower court could have been the originator of the fight rather than the respondent.
The conclusion I reach therefore is that a retrial would be inappropriate and unjustified. I wish to add that where the respondent has been acquitted, a new trial would deprive him of such chance of being acquitted which will appear to be against his constitutional rights. Retrial is therefore refused.
Dated and delivered at Machakos this 20th day of December, 2006.
D.A. ONYANCHA
JUDGE