CHARLES MOGENI ABUGA vs REPUBLIC [2004] KEHC 1797 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL DIVISION CRIMINAL APPEAL NO. 439 OF 2003

(From Original conviction and sentence in Criminal Case No. 253 of 2003 of the Senior Resident Magistrate’s Court at Narok ) – S. M. Githinji

CHARLES MOGENI ABUGA…………………APPELLANT

VERSUS

REPUBLIC……………………………………RESPONDENT

JUDGMENT

The Appellant, Charles Mogeni Abuga, was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on 2nd May 2002 at Munyasi Village Lemek, Mulot in Narok District with others not before Court the Appellant unlawfully did grievous harm to Antony Nyanchoka Muchego. After a full trial the Appellant was convicted as charged and sentenced to serve a term of four years imprisonment. He was aggrieved by both the Conviction and Sentence and has appealed against the same to this Court.

At the hearing of the Appeal, Mr. Koech Learned State Counsel conceded to the Appeal on the sole ground that the prosecution was conducted by an unqualified prosecutor. He however urged this Court to order that the Appellant be retried in view of the serious nature of the offence that he faced before the trial Court.

On his part, Mr. Karanja Learned Counsel for the Appellant while appreciating the concession of the Appeal by the State, however opposed that the Appellant be subjected to the rigours of a retrial. He submitted that since the Appellant was arrested and arraigned before Court on the 17th of April 2003 he has been in lawful custody to date. It was his Submission that the fact that the Appellant has served over one year in lawful custody, should be considered by this Court and have the Appellant discharged.

I have perused the proceedings of the trial Magistrate’s Court. I have noted that the proceedings thereto were prosecuted by Police Constable Ihaji. He is a Police Officer of a rank lower than that of an Assistant Inspector of police. He was therefore unauthorized to prosecute as provided by the provisions of Section 85(2) and Section 88 of the Criminal Procedure Code. The Court of Appeal in Roy Richard Elirema & Anor. –versus- Republic C. A. No. 67/2002 (Mombasa) (unreported) and Silvester Keli Kakumu Cr. A. No. 142/2002 (Mombasa) (unreported) held that where proceedings before a Magistrate’s Court are conducted by a Police Officer of a rank lower than that of an Assistant Inspector of Police, the proceedings thereto will be a nullity. I am bound by the decision of the Court of Appeal. The proceedings before the trial Magistrate’s Court are declared to be a nullity as a consequence of which the Appeal is allowed the conviction quashed and the sentence set aside.

Mr. Koech for the State has asked this Court to order that the Appellant be retried in view of the serious nature of the offence that faced him before the trial Court. I have gone through the evidence that was adduced before the trial Court. The evidence that the trial Magistrate relied on was the evidence of a single identifying witness. The Court did not warn itself of the dangers of convicting the Appellant based on such evidence. I have also noted the fact that the trial Magistrate did not consider the plausible defence raised by the Appellant as he was mandated to do under the Law. In the circumstances of this case, were the proceedings not vitiated by the fact that the matter was prosecuted by an unqualified prosecutor, most probable, this Court would have been inclined to allow the Appeal. In the premises therefore no useful purpose would be served by an order of retrial. I have also considered the period which the Appellant has remained in lawful custody. The ends of justice would be served by an order discharging the Appellant.

The Appellant is therefore set at liberty unless otherwise lawfully held.

DATED at NAKURU this 22nd day of April, 2004.

L. KIMARU

AG. JUDGE