Case Metadata |
|
| Case Number: | Criminal Appeals 20,21,22,& 23 of 2003 |
|---|---|
| Parties: | Richard Otieno Omolo; James Mbugua Kuri; John Otieno; Joseph Oyoro Wambai; John Kairuki Mwangi v Republic |
| Date Delivered: | 30 Jun 2005 |
| Case Class: | Criminal |
| Court: | High Court at Eldoret |
| Case Action: | |
| Judge(s): | George Matatia Abaleka Dulu, Jeanne Wanjiku Gacheche |
| Citation: | Richard Otieno Omolo & 4 others v Republic [2005] eKLR |
| Advocates: | Mr. Omutelema for the Republc |
| Advocates: | Mr. Omutelema for the Republc |
| Case Summary: | Criminal Procedure - conduct of prosecution - prosecutions conducted by a person not authorised to be a public prosecutor - Police officer of the rank of Constable - trial declared a nullity,convictions quashed and sentences set aside - court considering whether it would be proper to order a retrial. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
APPELLATE SIDE
Criminal Appeal 19 of 2003
AS CONSOLIDATED WITH
Criminal Appeal 20 21 22 & 23 of 2003
RICHARD OTIENO OMOLO )
JAMES MBUGUA KURI )
JOHN OTIENO ) …...…………………………… APPELLANTS
JOSEPH OYORO WAMBAI )
JOHN KARIUKI MWANGI )
AND
REPUBLIC ………………………..………………………………… RESPONDENT
Being Appeals from the Judgment in Eldoret C. M.’s Court Criminal Case No. 149 of
1999 delivered on 20/02/2003 by L. W. Gitari (Ms.) P.M.)
JUDGMENT
The appeals before us, which were consolidated for hearing and final determination arise from the judgment in a matter where these five appellants were convicted of twelve counts of robbery with violence, and for which they were sentenced to suffer death.
Mr. Omutelema learned State Counsel concedes to the appeal and we are inclined to agree with him, for despite the requirements of section 85 of the Criminal Procedure Code that only police officers of the rank of Assistant Inspector of Police and above shall be public prosecutors, it appears from the trial records that the case against these five was partly prosecuted by one Police Constable Mwangi on various dates, when he led the evidence of PW4, PW16 and PW19, which renders the trial a nullity. We therefore set a side the convictions and quash the resultants sentences.
Mr. Omutelema however prays for a retrial.
We are well alive to the principle that in general, a retrial will be ordered only when the original trial was illegal or defective. “It will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances, and an order for a retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused (Ezekiel Nangale Akoyo v. Republic Cr. A. (Kisumu) No. 239/2002)”.
Though the appellants were sentenced two years ago, they have been in custody for the last six years. We feel that to order a retrial at this stage would be unjust, and having allowed the appeal, and set aside the convictions and quashed the sentences, we do order that the five be set at liberty forthwith unless otherwise held in lawful custody.
Dated and delivered at Eldoret this 30th day of June 2005.
JEANNE GACHECHE GEORGE DUKU
Jugde Ag.judge
Delivered in the presence of:
Mr. Omutelema for the state The five (5) appellants
Please Wait. Searching ...