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Court of AppealPartially AllowedCriminal Appeal 217 of 2003· [2003] KECA 206 (KLR)

Nyakundi & another v Republic

Court of Appeal

28 November 2003

PK Tunoi EOEO O'Kubasu JOJWO Otieno

985 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that a police constable had no legal authority to prosecute, voiding a robbery trial and death sentence.

What this practically means

Executive summary

The appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code by a Senior Resident Magistrate and sentenced to death. Their first appeal to the High Court at Kisii (Wambilyangah J) was dismissed on 25 September 2002. On second appeal to the Court of Appeal at Kisumu, counsel argued a single ground: that the entire trial was a nullity because the prosecutor was not qualified under section 85(2) of the Criminal Procedure Code. The trial record showed that the first portion of the prosecution, in which three witnesses testified, was conducted by Police Constable Makori, while the later portion was conducted by Inspector Okoth. The Court held that PC Makori, being below the rank of inspector, had no authority in law to act as a public prosecutor, rendering that portion of the prosecution a nullity. Because there was only one trial, a material defect in part of it invalidated the whole trial. The Court adopted its earlier unreported decision in Roy Richard Elirema and Vincent Joseph Kessy v Rep (Criminal Appeal No 67 of 2002). The conviction was quashed and the death sentence set aside. On the question of remedy, the Court ordered a retrial rather than outright release, noting the offence was recent, there was no suggestion the four main prosecution witnesses could not be traced, and defence counsel did not strenuously oppose a retrial. The appellants were remanded in custody pending retrial on the non-bailable charge. This judgment binds subordinate courts on the qualification of prosecutors under section 85(2).

Key legal issues

Authority of a police constable to conduct prosecution

Holding

A police constable is not a person entitled to prosecute under section 85(2) of the Criminal Procedure Code; the portion of the trial he conducted was a nullity.

Reasoning

Section 85(2) permits the Attorney-General to appoint as public prosecutor an advocate of the High Court or a public servant not being a police officer below the rank of assistant inspector of police. PC Makori, who conducted the first part of the trial and took three prosecution witnesses, was below the rank of inspector and had no authority to prosecute. That portion of the prosecution was therefore a nullity.

p. 2

Effect of a defective part of a single trial

Holding

Because there was only one trial, a material defect in part of it invalidates the whole trial, notwithstanding that the later part conducted by Inspector Okoth was valid.

Reasoning

The court treated the trial as indivisible: the first portion conducted by PC Makori was a nullity, and although the portion conducted by Inspector Okoth was valid, the defect was material. The court adopted its earlier decision in Roy Richard Elirema and Vincent Joseph Kessy v Rep, Criminal Appeal No 67 of 2002, and quashed the conviction and set aside the death sentence.

p. 2

Whether to order a retrial

Holding

A retrial was ordered because the offence was recent, there was no suggestion the main prosecution witnesses could not be traced, and defence counsel did not strenuously oppose a retrial.

Reasoning

Having quashed the conviction, the court weighed whether to release the appellants or order a retrial. The offence occurred in September 2001; no difficulty in tracing the four main prosecution witnesses was suggested; counsel for the appellants did not strenuously oppose a retrial. The court concluded the ends of justice would be served by a retrial and remanded the appellants in custody pending retrial on the non-bailable offence.

p. 2

Legal principles established

A police officer below the rank of assistant inspector of police (and, as applied here, below the rank of inspector) is not qualified under section 85(2) of the Criminal Procedure Code to act as a public prosecutor; prosecution by such an unqualified person renders the trial a nullity.
Where a single trial is conducted in parts and any material part of it is defective, the whole trial is invalidated.

Court orders

1.Declaration that the trial of the appellants in which a police constable purported to act as public prosecutor is a nullity
2.Conviction quashed
3.Sentence of death passed on each appellant set aside
4.Retrial of the appellants ordered
5.Appellants remanded in custody pending retrial

Authorities

Legislation

Criminal Procedure Codesection 85(2)
Penal Codesection 296(2)

Cases cited (1)

Roy Richard Elirema and Vincent Joseph Kessy v Rep – Criminal Appeal No 67 of 2002
unreported
Prosecution by unqualified persons renders the trial a nullity; adopted by this Court.

On appeal from: High Court at Kisii
Jurisdiction invoked: Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appellate jurisdiction)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nyakundi & another v Republic", Case Analysis (2003). Criminal Appeal 217 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/206/eng@2003-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.