Erick Cheruiyot Kirui v Republic [2005] KEHC 1882 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO Criminal Appeal 81 of 2004

(From original conviction and sentence in Criminal Case No. 2999 of 2003 of the Resident Magistrate, Kericho – Miss B. A. Ojoo)ERICK CHERUIYOT KIRUI…………………………………APPELLANT VERSUS REPUBLIC……………………….…………………………..RESPONDENT

JUDGMENT

The Appellant has appealed against the original conviction and sentence imposed on him by Ms B. A. Ojoo, Resident Magistrate on 20th July, 2004 in Criminal Case No. 2999 of 2003. Earlier, the Appellant had been charged for the offence of assault, causing actual bodily harm, contrary to Section 251 of the Penal Code. The facts of the prosecution case as stated in the Charge Sheet are as follows:

During the hearing of the case, the prosecution was partly conducted by PC Mwita who is not an authorized officer. In his submissions, Mr. Ngetich has submitted that the trial was a nullity ab initioand that the learned Magistrate had failed to appreciate that the entire trial was a mistrial. On the other hand, the State through Mr. Gumo Assistant Deputy Public Prosecutor hasnot opposed the appeal. Since the position of the law is very clear, I hereby allow the appeal. The conviction is hereby quashed while the sentence is set aside.

The Appellant should be released forthwith unless held lawfully.

Judgment written, read and delivered in open Court.

MUGA APONDI JUDGE 5TH JULY, 2005