ALI MGENJA MJOMBA vs REPUBLIC [2004] KEHC 1860 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

APPELLATE SIDE

CRIMINAL APPEAL NO. 221 OF 2003

(From Original conviction and sentence in Criminal Case No. 5 of 2003 of

the Resident Magistrate’s Court, Wundanyi)

ALI MGENJA MJOMBA …………………….………………… APPELLANT

VERSUS

REPUBLIC …………………..………………………….. RESPONDENT

Coram:  J W Mwera

Magolo for the appellant

Gumo State Counsel for Republic

Appellant present

JUDGEMENT The appellant was charged in the lower court at Wundanyi with 2 counts of preparing to commit a felony and assault causing actual bodily harm.

The prosecution was conducted partly by a police inspector and then a police constable. The latter prosecution was contrary to Section 85(2) CPC, thus the trial was a nullity. The Learned State Counsel concedes this and rightly so. He does not wish to press for a retrial.

Having all the above in mind the appeal is allowed, conviction quashed and the sentence set aside. The appellant to be set at liberty forthwith unless otherwise lawfully held.

Delivered on 8th January 2004. J MWERA JUDGE