[2008] KEHC 3365 (KLR)
The court found that the appellant's trial was a nullity because it was prosecuted by an unqualified person, contrary to Section 85 of the Criminal Procedure Code. The court further held that ordering a retrial would be unjust since the appellant had already served all of the sentence on the second count and a...
Source-derived case information.
- Citation
- [2008] KEHC 3365 (KLR)
- Parties
- Appellant: Venanzio Nyaga Riungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; no retrial ordered
- Legal Topics
- Unqualified Prosecution, Retrial Principles, Custodial Sentence, Appeal Concession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Venanzio Nyaga Riungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution of the appellant by an unqualified person rendered the trial a nullity.
- 2 Whether a retrial should be ordered after the appellant has served a substantial part of the sentence.
- 3 Whether subjecting the appellant to a retrial would be just in the circumstances.
Ratio Decidendi
The court found that the appellant's trial was a nullity because it was prosecuted by an unqualified person, contrary to Section 85 of the Criminal Procedure Code. The court further held that ordering a retrial would be unjust since the appellant had already served all of the sentence on the second count and a substantial part of the sentence on the first count. The delay and uncertainty regarding the availability of witnesses would further prejudice the appellant. The fault lay not with the appellant but with the prosecution, and justice required that the appellant be released rather than subjected to a retrial. The State's concession of the appeal was accepted, and the appeal was...
Court Disposition
appeal allowed; conviction quashed; no retrial ordered
Orders
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Criminal Appeal 93 of 2002
VENANZIO NYAGA RIUNGU………………......………….APPELLANTS
VERSUS
REPUBLIC…………………………………………………RESPONDENT
JUDGMENT
The State Counsel Mr. Kimathi has conceded this appeal on the ground it was prosecuted by a sergeant, under Section 85 CPC a person not qualified. He submits that the appellant has been in custody for a long period. He was arrested on 2/1/2002 and the trial ended on 11/9/2002. After conviction and sentence for 5 years imprisonment on one count and 8 months imprisonment for second count. He served sentence for 2 ½ years before. The state applies for a Retrial on the ground that there is overwhelming evidence against the appellant and if trial was held a conviction could be achieved. The counsel for the appellant objects to an order for retrial granted. This charge has been hanging on his head todate. It is clear that the appellant has served all sentences on count 2 and substantial part of sentence in count one.
It is my view that subjecting him to further trial would be unjust. It is not his fault that the trial resulted in a nullity. There is no assurance that the witnesses who gave evidence in the lower court can be easily found thus delay in a retrial. Justice demands that the Appellant be released at this stage. The state conceding the appeal the same is allowed. I do not see any reason to order a retrial.
The appellant shall be released forthwith unless otherwise lawfully held.
Dated this 20th February, 2008.
J. N. KHAMINWA
JUDGE