[2005] KEHC 1985 (KLR)
The court found that part of the prosecution was conducted by Corporal Nyongesa, who was not authorized under section 85(2) of the Criminal Procedure Code to prosecute. This procedural irregularity rendered the entire proceedings a nullity. The court accepted the concession by the Senior State Counsel and held that...
Source-derived case information.
- Citation
- [2005] KEHC 1985 (KLR)
- Parties
- Appellant: Suleiman Kobi Machio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 126 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Unauthorized Prosecution, Nullity of Proceedings, Criminal Appeal, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Kobi Machio
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution of the appellant by an unauthorized prosecutor rendered the trial a nullity.
- 2 Whether the conviction and sentence should be set aside due to procedural irregularity.
Ratio Decidendi
The court found that part of the prosecution was conducted by Corporal Nyongesa, who was not authorized under section 85(2) of the Criminal Procedure Code to prosecute. This procedural irregularity rendered the entire proceedings a nullity. The court accepted the concession by the Senior State Counsel and held that the conviction and sentence could not stand, thus allowing the appeal, quashing the conviction, and setting aside the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE REPUBLIC OF KENYA AT BUNGOMA Criminal Appeal 126 of 2003 Arising from Webuye Criminal SRM case No. 520 of 2003
SULEIMAN KOBI MACHIO…………………………………………..APPELLANT VS REPUBLIC…………………………………………………………….RESPONDENT J U D G M E N T
The appellant, Suleiman Kobi Machio and 3 others faced a charge of Hardware breaking and committing a felony contrary to section 306 (a) of the penal code. He was then convicted and sentenced to serve 1 year under probation. He filed a petition of appeal containing 5 grounds of appeal.
When this appeal came up for hearing the senior state counsel pointed out that he was conceding to the appeal on a technical ground which was not raised on the appellant’s petition. He urged this court to allow this appeal on the ground that the proceedings before the trial court were a nullity by virtue of the fact that the prosecution’s case was conducted by an unauthorized prosecutor. I have perused the record of appeal and I am satisfied that the prosecution of the appellant was partly conducted by one corporal Nyongesa who was obviously not allowed to prosecute under section 85(2) of the criminal procedure code. The whole proceedings therefore became a nullity. I am satisfied the learned senior state counsel properly conceded to this appeal.
The end result is that the appeal is allowed with a consequential that the conviction is quashed and the sentence set aside.
DATED AND DELIVERED THIS 25th .DAY OF February 2005
J.K. SERGON
JUDGE