Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 151 of 2004· [2005] KECA 329 (KLR)

Benard Lolimo Ekimat v Republic [2005] KECA 329 (KLR)

Court of Appeal of Kenya
18 February 2005
ROR. S. C. OmoloEOE. O. O'KubasuJOJ. W. Onyango Otieno
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal freed a man convicted of robbery because the trial record never showed who was prosecuting — the gap voided the whole case.

What this practically means

#

Executive summary

#
The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Senior Resident Magistrate and sentenced to death. His first appeal to the High Court at Kitale (Gacheche, J and Dulu, Ag. J) was dismissed on 25th March 2004. On second appeal, counsel for the appellant raised a single ground: that the trial proceedings were a nullity because the record for 12th February 2002, the day the prosecution case was heard and concluded, contained no coram entry and no indication that a prosecutor was present or of what rank. The State conceded nothing and urged the court to assume that IP Irungu, who appeared on surrounding dates, prosecuted on the hearing date, and alternatively sought a retrial. The Court of Appeal, in a unanimous judgment, held that a valid criminal trial requires a prosecutor, and a public prosecutor must be of the rank of Inspector of Police and above, following Roy Richard Elirema & Another v R. Since the record disclosed no coram and no prosecutor's presence or rank on the hearing day, the court could not assume a qualified prosecutor conducted the case; the omission was a matter of law touching jurisdiction which the court could not ignore. The proceedings of 12th February 2002, which embraced the entire prosecution case, were a nullity and could not be severed from the rest. The conviction was quashed, the sentence set aside, and a retrial was declined because, applying Ahmed Sumar v Republic and Pascal Clement Braganza v R, the interests of justice, including the appellant's over three years in confinement, did not require it. The appellant was set free unless otherwise lawfully held.

Key legal issues

#
01

Whether proceedings conducted without a recorded coram and without proof of a qualified prosecutor are a nullity

Holding

Yes. The entire proceedings of 12th February 2002, which covered the whole prosecution case, were a nullity because the record did not show that a prosecutor of the rank required by section 85(2) of the Criminal Procedure Code was present and conducting the prosecution.

Reasoning

The record showed no coram entry on the hearing date and no indication whether a prosecutor was present or of what rank. The court could not assume IP Irungu prosecuted simply because he appeared on other dates. The omission raised a question of law going to jurisdiction which the court could not ignore, and the defective proceedings could not be severed from the rest, rendering the entire trial a nullity.

p. 3
02

Whether a retrial should follow the nullification of the proceedings

Holding

No. Applying Ahmed Sumar v Republic and Pascal Clement Braganza v R, a retrial is ordered only where the interests of justice require it, and given the charge, the evidence, and the appellant's prolonged confinement, retrial was refused.

Reasoning

The offence occurred on 7th January 2002 and the appellant was in confinement since 8th January 2002, over three years. The court weighed the charge, the evidence adduced, and the period of confinement and concluded that a retrial would not serve the interests of justice and was likely to cause injustice to the accused.

p. 3

Legal principles established

#
  • A criminal trial must have a prosecutor, who if public must be of the rank of Inspector of Police and above; a trial conducted without a record showing such a prosecutor is a nullity
  • A retrial should only be ordered where the interests of justice require it and not where it is likely to cause an injustice to an accused person

Court orders

#
  1. 1.The conviction recorded against the appellant is quashed
  2. 2.The sentence of death is set aside
  3. 3.Retrial declined
  4. 4.The appellant is set free unless otherwise lawfully held

Authorities

#

Legislation

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

Cases cited (3)

  • Roy Richard Elirema & Another v R
    Criminal Appeal No. 67 of 2002
  • Ahmed Sumar v Republic
    [1964] EA 481
  • Pascal Clement Braganza v R
    [1957] EA 152
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. No. 139 of 2002
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal over a second criminal appeal on a matter of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Benard Lolimo Ekimat v Republic [2005] KECA 329 (KLR)", Case Analysis (2005). Criminal Appeal No. 151 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/329/eng@2005-02-18

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