[2004] KEHC 803 (KLR)
The court found that the prosecution in the lower court was conducted by police constables who were not qualified to prosecute under Section 85(2) of the Criminal Procedure Code. This rendered the entire trial a nullity. The court relied on the precedent set in Roy Richard Eliremah & Another v Republic, where...
Source-derived case information.
- Citation
- [2004] KEHC 803 (KLR)
- Parties
- Appellant: W K K; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 132 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Unqualified Prosecutor, Nullity of Trial, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
W K K
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution conducted by unqualified police prosecutors rendered the trial a nullity.
- 2 Whether a retrial should be ordered after the conviction and sentence are quashed.
Ratio Decidendi
The court found that the prosecution in the lower court was conducted by police constables who were not qualified to prosecute under Section 85(2) of the Criminal Procedure Code. This rendered the entire trial a nullity. The court relied on the precedent set in Roy Richard Eliremah & Another v Republic, where convictions were quashed and no retrial was ordered in similar circumstances. Taking into account the appellant's long period of incarceration since 1/1/2000, the nature of the offence, and his age at the time of the alleged offence, the court determined that it would not be in the interest of justice to order a retrial. Consequently, the conviction and sentence were set aside, and...
Court Disposition
appeal_allowed
Orders
- The conviction is set aside.
- The sentence is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO. 132 OF 2001 (From original conviction and sentence in Criminal Case No. 32 of 2000 of the Senior Resident Magistrate’s court at MOLO – J. KIARIE, ESQ.)
W K K…….……………….APPELLANT
VERSUS
REPUBLIC………………………………………..RESPONDENT
JUDGMENT OF THE COURT
The Appellant and 2 others were charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. It was alleged that on 1/1/2000 at Kichagi Farm Nyakiambi of Nakuru District, the Appellant and 2 other persons jointly robbed Anthony Kuria of one bicycle make Raja valued at Kshs.3,400/- and immediately after the time of such robbery threatened to use actual violence to the said Anthony Kuria. The Appellant was convicted of the said offence but because he was 15 years at the time he committed the offence he was detained in prison at the President’s pleasure as per the provisions of Section 25(2) of the Penal Code.
He was aggrieved by the said conviction and sentence and he appealed against the same. Before the Appellant addressed us on his appeal, Mr. Koech, the learned state counsel informed the court that the prosecution in the lower court had been conducted by unqualified police prosecutors, who were police constables. He therefore conceded to the appeal and as to whether the Appellant ought to be retried or not, he chose to make no submission but left the issue to the court.
The Appellant said that he was opposed to a retrial, saying that his co-accused had died in custody. We have considered the issues raised by the learned state counsel and the Appellant. We have ascertained that the prosecution case was conducted by Police Constable Ngesa and Police Constable Njagi. Both were unqualified in terms of the provisions of Section 85(2) of the Criminal Procedure Code which requires that such prosecution, if conducted by a police officer, such a police officer should not be below the rank of an Assistant Inspector. The trial was therefore a nullity. The legal position was clearly stated by the Court of Appeal inROY RICHARD ELIREMAH & ANOTHER VS REPUBLIC Criminal Appeal No. 67 of 2002 at Mombasa (unreported). In that matter, the Court of Appeal allowed an appeal where the Appellants had been convicted and sentenced to death because the prosecution case had been conducted by an unqualified police prosecutor. The court did not order a retrial, considering the fact that the Appellants had been in custody for a long period of time. In the present matter, being satisfied that the trial was a nullity for the reason aforesaid we set aside the conviction and quash the sentence that was handed down to the Appellant by the trial magistrate.
We note that the Appellant has been in custody since 1/1/2000 when he was arrested and considering the long period of his incarceration, the nature of the offence allegedly committed and his age at the time when he was alleged to have committed the offence, we are of the considered view that it would not be in the interest of justice to order a retrial and we consequently, discharge the Appellant and order that he be set at liberty forthwith unless otherwise lawfully held.
DATED at Nakuru this 17th day of December, 2004.
D. MUSINGA
JUDGE
17/12/2004
L. KIMARU
JUDGE
17/12/2004