1. Daniel K. Ingute 2. Patrick Asembo 3. Paul Malala Owuor v Republic

The court applied its own earlier decision in ELIREMA & ANOTHER v REPUBLIC, which construed section 77(1) of the Constitution and sections 85 and 86 of the Criminal Procedure Code. A valid trial requires a prosecutor, public or private, who decides which witnesses to call, their order, and whether to continue or discontinue the prosecution; if the trial court performs those functions its impartiality is imperilled contrary to section 77(1). Only an advocate of the High Court or a police officer not below the rank of Assistant Inspector may be appointed a public prosecutor. Senior State Counsel conceded Sgt. Okumu was unqualified, so the trial fell to be declared a nullity.

The court rejected the argument that portions of the trial handled by a qualified prosecutor could cure the defect. Since there was only a single trial, a material defect in any part of it infected the whole. Because the prosecution was at times conducted by Sgt. Okumu, whose lack of qualification was conceded by the State, the entire proceedings before the Chief Magistrate’s Court at Kakamega had to be declared a nullity, with the consequence that every conviction and sentence founded on them fell.

Having nullified the trial, the court weighed whether to order a retrial, holding that the question depends on the circumstances of each case. It deliberately refrained from appraising the evidence, keeping the final orders in mind, but considered the whole record and concluded the matter should be thoroughly and properly heard. The State emphasised that a life was lost and the evidence overwhelming; the defence pointed to about twelve years in custody. Balancing these considerations, the interest of justice favoured a retrial.