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Court of AppealPartially AllowedCriminal Appeal 223 of 2003

RICHARD OMOLLO AJUOGA v REPUBLIC [2007] KECA 442 (KLR)

Court of Appeal of Kenya
2 February 2007
EOE.O. O'KubasuJOJ.W. Onyango OtienoWDW.S. Deverell
2,569 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed robbery convictions because an unqualified police officer prosecuted the case, but ordered a retrial rather than releasing the accused.

What this practically means

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Executive summary

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This was a second appeal by Richard Omollo Ajuoga against the dismissal by the High Court at Nairobi (Mbogholi and Mutitu, JJ) of his first appeal against convictions and death sentences on three counts of robbery with violence under section 296(2) of the Penal Code, arising from a spate of vehicle robberies in Kisii town on 26th August 1997 in which one victim was killed. Although six initial and thirteen supplementary grounds were filed, only one ground was urged: that part of the trial before the Senior Resident Magistrate at Kisii was prosecuted by an unqualified person contrary to section 85(2) as read with section 88 of the Criminal Procedure Code. The respondent's counsel conceded the point. On its own perusal of the record, the Court found that Cpl. Juma, a police officer below the rank of inspector, prosecuted most of the case with no evidence of permission, making him an unqualified public prosecutor. Following Roy Richard Elirema & Another v R, the Court held there was only one trial and a material defect in part invalidates the whole; it declared the trial a nullity, quashed all convictions and set aside the sentences. The State sought a retrial while the appellant cited the ten years already spent in confinement. Applying Ahmed Sumar, Pascal Clement Braganza and Benard Lolimo Ekimat, and distinguishing the appellant's authorities on their facts, the Court ordered a retrial before another court of competent jurisdiction, the appellant to be produced within fourteen days. The appeal therefore succeeded on the validity of the trial but the appellant was not set at liberty outright.

Key legal issues

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01

Validity of a trial prosecuted partly by an unqualified person

Holding

The trial before the subordinate court was a nullity because Cpl. Juma, a police officer below the rank of inspector, conducted most of the prosecution without permission, contrary to section 85(2) of the Criminal Procedure Code; all convictions were quashed and sentences set aside.

Reasoning

Relying on Roy Richard Elirema & Another v R, the court held that only an advocate of the High Court or a police officer not below the rank of Assistant Inspector may be appointed a public prosecutor. The record showed Cpl. Juma prosecuted from 25th September 1998 to the end of the case with no evidence of permission. Since there was only one trial, a material defect in part invalidates the whole. The point, though a matter of law, was rightly taken for the first time on second appeal.

p. 2
02

Whether a retrial should be ordered despite prolonged pre-trial and post-conviction confinement

Holding

A retrial was ordered despite the appellant's confinement of close to ten years and possible difficulty in tracing witnesses, because the gravity of the offences and the interests of the victims demanded that justice be done to all parties.

Reasoning

The court distinguished Pascal Ouma Ogolo and Henry Odhiambo Otieno as decided on their own circumstances. Applying Ahmed Sumar, Pascal Clement Braganza and Benard Lolimo Ekimat, it weighed the delay against the seriousness of the offences, including the killing of a public servant, and the admissible evidence on record. It concluded the interests of justice required a retrial before another court of competent jurisdiction, with the appellant to be produced within fourteen days.

p. 4

Legal principles established

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  • A trial conducted in part by a person not qualified under section 85(2) of the Criminal Procedure Code to prosecute is a nullity; the defective part cannot be severed and the whole trial must be invalidated.
  • An order for retrial is discretionary, depends on the particular facts and circumstances of each case, and should only be made where the interests of justice require it.
  • Where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not follow that a retrial should be refused; retrial should not be ordered where it is likely to cause an injustice to the accused.

Court orders

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  1. 1.Declared the trial before the subordinate court a nullity
  2. 2.Quashed all the convictions recorded against the appellant
  3. 3.Set aside the sentences
  4. 4.Ordered a retrial of the appellant before another court of competent jurisdiction
  5. 5.Directed that the appellant be produced before a competent court for retrial within fourteen days of the date of the judgment
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. Appeal No. 171 of 1999
Jurisdiction invoked
Second appeal to the Court of Appeal on a point of law under the Criminal Procedure Code following appeal from the High Court's dismissal of a first appeal against conviction and sentence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "RICHARD OMOLLO AJUOGA v REPUBLIC [2007] KECA 442 (KLR)", Case Analysis (2007). Criminal Appeal 223 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/442/eng@2007-02-02

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