[2005] KEHC 1035 (KLR)
The court found that the proceedings in the lower court were conducted by Corporal Kyumbu, who was not qualified to prosecute under Section 85 and 88 of the Criminal Procedure Code. As a result, the entire proceedings were a nullity. The court further noted that the prosecution did not request a retrial and, upon...
Source-derived case information.
- Citation
- [2005] KEHC 1035 (KLR)
- Parties
- Appellant: Thomas Kivuva Muange; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 252 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant released; fine refunded
- Legal Topics
- Malicious Damage to Property, Stealing, Incompetent Prosecution, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Kivuva Muange
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the proceedings in the lower court were a nullity due to prosecution by an incompetent prosecutor.
- 2 Whether the conviction and sentence should be quashed and set aside as a result of the procedural defect.
- 3 Whether a retrial should be ordered given the evidence on record.
Ratio Decidendi
The court found that the proceedings in the lower court were conducted by Corporal Kyumbu, who was not qualified to prosecute under Section 85 and 88 of the Criminal Procedure Code. As a result, the entire proceedings were a nullity. The court further noted that the prosecution did not request a retrial and, upon reviewing the evidence, found that there was doubt as to the ownership of the property in question, making the conviction unsafe. Therefore, the court quashed the conviction, set aside the sentence, ordered the appellant's immediate release, and directed that the fine paid be refunded.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant released; fine refunded
Orders
- The proceedings in the lower court are declared a nullity.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT
MACHAKOS
APPELLATE SIDE
Criminal Appeal 252 of 2003
(From Original Conviction(s) and Sentence(s) in Criminal Case No 314 of 2001 of the
District Magistrate’s Court at Makueni DM I on 15/8/03)
THOMAS KIVUVA MUANGE ……………………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………………………………… RESPONDENT
J U D G E M E N T
The appellant appeals from the judgement of the DM I Makueni Criminal Case 314/01.
Before that court, the appellant faced two offences of malicious damage to property Contrary to Section 339 (1) of the Penal Code and stealing Contrary to Section 275 of the Penal Code. He was convicted of both counts and sentenced to; count I Ksh.10,000/= in default 6 months imprisonment and count II Ksh. 6,000/= in default 4 months imprisonment. Fine was paid on the same day of sentence on 15/8/03. He was aggrieved by both conviction and sentence.
At the hearing of the appeal even without going into the merits of the appeal the state counsel conceded the appeal on ground that the proceedings in the lower court were conducted by an incompetent prosecutor and urged the court to declare these proceedings a nullity. He did not apply for a retrial. It is evident from the record of appeal that the proceedings before the lower court were conducted by Corporal Kyumbu.
He is an incompetent prosecutor in terms of Section 85 and Section 88 of the Criminal Procedure Code which provides that the Attorney General shall appoint public prosecutors from Advocates of the High Court or police officers of the rank of acting Inspector of police and above. Corporal Kyumbu did not fall under any of the above categories and was, therefore, incompetent to prosecute.
It is now trite law that such proceedings prosecuted by an incompetent prosecutor are a nullity (see ROY ELIREMAversus REPUBLIC Criminal Appeal 67/03. ) The court hereby declares the proceedings in the lower court a nullity and the conviction is hereby quashed and sentence set aside.
The prosecution did not request for a retrial of the case. I have scanned through the record of evidence adduced before the lower court and do find that thought the court found that the appellant was guilty of the two offences, the prosecution did prove beyond any doubt the ownership of the alleged stolen property and damaged property to be that of the complainant. There was doubt as to whether the complainant was the owner of that property in issue and the conviction was, therefore, unsafe. Ordering a retrial would be doing so in vain and the appellant is hereby set at liberty forthwith and the fine of Ksh. 16,000/= paid in court on 15//8/03 should be refunded to the appellant forthwith.
Dated at Machakos this 26th day of January 2005
Read and delivered in the presence of
R.V. WENDOH
JUDGE