[2006] KEHC 2685 (KLR)
The court found that the trial of the appellant was a nullity because it was prosecuted by Senior Sergeant Kigera, who was not a qualified prosecutor as required by Section 85(2) of the Criminal Procedure Code. The State conceded this point and did not seek a retrial. The court, upon reviewing the trial record,...
Source-derived case information.
- Citation
- [2006] KEHC 2685 (KLR)
- Parties
- Appellant: Stephen Mwangi Warundu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 272 of 2003
- Procedural Posture
- Criminal Appeal / Appeal Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained
- Judges
- GG Okwengu
- Legal Topics
- Robbery With Violence, Unqualified Prosecutor, Criminal Procedure Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mwangi Warundu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Judgment
Legal Issues
- 1 Whether the trial was a nullity due to prosecution by an unqualified prosecutor.
- 2 Whether the conviction and sentence should be quashed as a result.
Ratio Decidendi
The court found that the trial of the appellant was a nullity because it was prosecuted by Senior Sergeant Kigera, who was not a qualified prosecutor as required by Section 85(2) of the Criminal Procedure Code. The State conceded this point and did not seek a retrial. The court, upon reviewing the trial record, agreed with the State's position and held that the conviction and sentence could not stand. Consequently, the court allowed the appeal, quashed the conviction, set aside the sentence, and ordered the appellant's immediate release unless otherwise lawfully detained.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained
Orders
- The trial of the appellant is declared a nullity.
- The appeal is allowed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 272 of 2003
STEPHEN MWANGI WARUNDU………………..............……………….APPELLANT
VERSUS
REPUBLIC…………………………………….………………………..RESPONDENT
(Being an appeal from the judgment of M. R. Gitonga, then
Senior Resident Magistrate, dated 22nd May, 2003 in the
Chief Magistrate’s Court, Nyeri Criminal Case No.1 of 2003)
JUDGMENT
The Appellant was convicted of robbery with violence contrary to Section 296 (2) of the Penal Code and was sentenced to death. When his appeal came before us for hearing, the Learned State Counsel m/s Ngalyuka told us she was conceding the appeal because the trial of the Appellant was a nullity as the prosecutor Senior Sergeant Kigera was not a qualified prosecutor in terms of Section 85 (2) of the Criminal Procedure Code. The State Counsel did not ask for a retrial.
We have looked at the record from the Trial Magistrate’s Court and we have no reason to disagree with what the State Counsel has said.
Accordingly, we do declare the trial of the Appellant a nullity, allow his appeal, quash his conviction and set aside the sentence imposed upon him.
The Appellant shall be set at liberty forthwith unless lawfully detained in some other cause.
Dated this 3rd day of May 2006.
J. M. KHAMONI
JUDGE
H. M. OKWENGU
JUDGE