[2006] KEHC 1809 (KLR)
The court found that the appellant's trial was a nullity because the prosecution was conducted by a police constable who was not competent under Section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the entire proceedings invalid, regardless of the evidence presented. Furthermore, the...
Source-derived case information.
- Citation
- [2006] KEHC 1809 (KLR)
- Parties
- Appellant: Simon Mwangi Kihara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 340 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GG Okwengu
- Legal Topics
- Stealing by Clerk, Criminal Procedure Irregularity, Conviction and Sentence, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mwangi Kihara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant was valid in light of the prosecution being conducted by an incompetent person under Section 85(2) of the Criminal Procedure Code.
- 2 Whether the absence of key documentary evidence in the record of appeal affected the fairness of the trial and conviction.
- 3 Whether a retrial should be ordered given the circumstances and the time already served by the appellant.
Ratio Decidendi
The court found that the appellant's trial was a nullity because the prosecution was conducted by a police constable who was not competent under Section 85(2) of the Criminal Procedure Code. This procedural irregularity rendered the entire proceedings invalid, regardless of the evidence presented. Furthermore, the absence of key documentary exhibits in the record of appeal made it impossible for the appellate court to conclusively assess the evidence. Given that the appellant had virtually completed serving his sentence, the court held that it would not be fair or just to order a retrial. Consequently, the conviction was quashed and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 340 of 2003
SIMON MWANGI KIHARA………………........................................………….…….APPELLANT
VERSUS
REPUBLIC………………………………..................................………………….RESPONDENT
(Appeal from the original conviction and sentence in the Chief Magistrate’s Court at Kerugoya in Criminal Case Number 296 of 200
by J. N. Onyiego – R.M.)
J U D G M E N T
Simon Mwangi Kibara hereinafter referred to as the Appellant was tried and convicted by the Resident Magistrate Kerugoya on two counts of the offence of Stealing by clerk contrary to Section 281 of the Penal Code. He was sentenced to serve 3 years imprisonment on each count. Being dissatisfied He has now brought this appeal against both conviction and sentence. In a nutshell his grounds of appeal are that there were no independent witnesses who testified against him nor were there any eye-witnesses but that the trial magistrate relied on documents and that his conviction was against the weight of the evidence adduced against him.
The particulars in respect of each charge against the Appellant alleged that being a store-clerk employed by Mwirua Farmers Co-operative Society, He stole assorted chemicals and farm inputs belonging to his employer. During the trial evidence was adduced that the Appellant was employed by Mwirua Farmers Co-operative Society as a store-clerk from 1st February 1985 to the year 2000.
At the request of the society Hesbon Mbuthia Kiura the Co-operative Officer based in Kerugoya conducted an audit check of the Society’s records and prepared a report which showed that the Appellant had collected certain chemicals and farm inputs which He signed for but that the items were not received at the Society’s sub-stores where they were supposed to be delivered.
The documents alleged to have been signed by the Appellant were forwarded to the document examiner together with the Appellant’s handwriting specimens and it was confirmed by the document examiner that the Appellant was the one who received the chemicals and farm in puts at the main store.
I have perused the original record of the lower court. I note that the report of the audit done by Hesbon Mbuthia Kiura which was produced as P Exh. 12 and the Delivery notes and stock cards produced as P Exhibit 1 to 11 did not form part of the record of appeal nor were they in the original file. This made it difficult for this court to form a conclusive impression on the evidence. I do not however think it would be fair or just to delay the conclusion of this appeal due to the absence of the documents. This is because it is apparent from the proceedings that the case against the Appellant was prosecuted mainly by one police constable Mwangi a person who was not competent in terms of Section 85 (2) of the Criminal Procedure Code. The Appellant’s trial was therefore a nullity and on this ground his conviction cannot stand.
Further the Appellant has virtually completed serving the sentence of 3 years imposed upon him and even if the evidence against him was sufficient to support the charge, it would not be fair nor just to order a retrial.
I therefore allow this appeal, quash the conviction and set aside the sentence imposed. The Appellant shall be released forthwith.
Dated, signed and delivered this 11th day of July 2006.
H. M. OKWENGU
JUDGE