[2004] KEHC 2343 (KLR)
The court found that the trial in the lower court was conducted by a police constable, who is not qualified to prosecute criminal cases. Relying on binding Court of Appeal authority, the court held that such a trial is a nullity. Consequently, the conviction and sentence imposed on the appellant were set aside, and...
Source-derived case information.
- Citation
- [2004] KEHC 2343 (KLR)
- Parties
- Appellant: George Ochieng Nyakwe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 28 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; fine to be refunded if paid
- Legal Topics
- Unqualified Prosecution, Nullity of Trial, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ochieng Nyakwe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial in the lower court was a nullity due to prosecution by an unqualified person.
- 2 Whether the conviction and sentence should be set aside as a result.
Ratio Decidendi
The court found that the trial in the lower court was conducted by a police constable, who is not qualified to prosecute criminal cases. Relying on binding Court of Appeal authority, the court held that such a trial is a nullity. Consequently, the conviction and sentence imposed on the appellant were set aside, and any fine paid was ordered to be refunded.
Court Disposition
appeal allowed; conviction and sentence set aside; fine to be refunded if paid
Orders
- The conviction and sentence imposed on the appellant are set aside.
- If the appellant had paid the fine, the same is to be refunded.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KE NYA AT KISII
CRIMINAL APPEAL NO.28 OF 2004(From original conviction and sentence of the Senior Resident Magistrate’s Court at Oyugis in Criminal Case No.274 of 2001 – N. N. NJAGI ESQ., S.R.M)SAMSON OTIENO OLOTO …………………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………………….. RESPONDENT.JUDGMENT
Appellant, GEORGE OCHIENG NYAKWE was charged and convicted with six others on three counts, two of assault causing actual bodily harm c/s.251 Penal Code and one of malicious damage to property c/s 339 (1) Penal Code. They were all convicted on the three charged and fined shs.3000/= in default 6 months imprisonment on Count 1, shs.1,000/=. i/d 1 month imprisonment in count 2 and shs.3000/- i/d 6 months imprisonment in count 3. His appeal is against both conviction and sentence.
At the commencement of the hearing, the State Counsel pointed out that the trial in the lower court was conducted by a police constable, a person not qualified to prosecute.
Indeed the proceedings show clearly that the prosecution was conducted by a police constable in the case of ROY RICHARD ELIREMA & VINCENT JOSEPH KESSY VS. R. C.A. Criminal Appeal No.67 of 2002 (unreported) and in the case of THOMAS OGAMBA NYAKUNDI & ANOTHER VS. REPUBLIC CA. Criminal Appeal No.217 of 2003 (unreported) the Court of Appeal held that a trial by an unqualified person is a nullity.
I therefore find the trial in the lower court was a nullity.I quash the appeal and set aside the sentence imposed. If the appellant had paid the fine the same be refunded.
KABURU BAUNIJUDGE
Signed, dated and delivered on 19th July 2004.