[2005] KEHC 1903 (KLR)
The court found that the prosecution of the appellant was conducted by a police constable, who was not qualified under Section 85(2) of the Criminal Procedure Code to prosecute criminal cases. As a result, the entire proceedings were a nullity. The court accepted the concession by the Principal State Counsel and...
Source-derived case information.
- Citation
- [2005] KEHC 1903 (KLR)
- Parties
- Appellant: Tom Muhingi Namusei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- ? 30 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Improper Prosecution, Nullity of Proceedings, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Muhingi Namusei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution of the appellant by a police constable below the rank of Assistant Inspector was lawful under Section 85(2) of the Criminal Procedure Code.
- 2 Whether the conviction and sentence based on such prosecution are valid.
Ratio Decidendi
The court found that the prosecution of the appellant was conducted by a police constable, who was not qualified under Section 85(2) of the Criminal Procedure Code to prosecute criminal cases. As a result, the entire proceedings were a nullity. The court accepted the concession by the Principal State Counsel and held that the conviction and sentence could not stand. Accordingly, the conviction was quashed and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction of Tom Muhingi Namusei is quashed.
- The sentence imposed on Tom Muhingi Namusei is set aside.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL APPEAL NO. 30 OF 2003 (Appeal against both conviction and sentence of the Senior Resident Magistrate’s Court at Vihiga in Criminal Case No. 1347 of 2001 (W. K. KAHINDI ESQ., DMII (PROF) TOM MUHINGI NAMUSEI:::::::::::::::::::::::::::::::::::::: APPELLANT
V E R S U S
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT JUDGEMENT
Tom Muhingi Namusei, the appellant, was placed on probation for a period of 3 years following his conviction on 31. 1.2003 by W. K. Kahindi Esq., DMII, in Vihiga SRM Criminal case No.1347 of 2001 of the offence of assault contrary to Section 251 of the Penal Code. The Prosecutor was a police Constable, one Mr. Osur. Under Section 85(2) of the Criminal Procedure Code, only an advocate of the High Court or a person employed in the public service not being a police officer below the rank of an Assistant Inspector of police appointed by the Attorney General in writing can prosecute. The prosecution of the appellant was therefore a nullity.
Mrs. Kithaka, Principal State Counsel, rightly conceded this appeal. Accordingly, the conviction is quashed, and sentence set aside.
Dated at Kakamega this 3rd day of June, 2005.
G. B. M. KARIUKI J U D G E