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Court of AppealPartially AllowedCriminal Appeal 177 of 2002· [2008] KECA 14 (KLR)

Justus Korir Sambu v Republic [2008] KECA 14 (KLR)

Court of Appeal

3 October 2008

P.K. Tunoi SBS.E.O. Bosire DAD.K.S. Aganyanya

1,177 words in judgment

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The bottom line

Kenya's Court of Appeal threw out a robbery conviction and death sentence because the wrong person - an improperly appointed prosecutor - ran the trial.

What this practically means

Executive summary

This was a second appeal by Justus Korir Sambu against his conviction by the Principal Magistrate's Court, Nyahururu, for robbery with violence contrary to section 296(2) of the Penal Code, a conviction affirmed by the High Court at Nakuru (Ondeyo & Visram, JJ.) which sentenced him to death. Section 361 of the Criminal Procedure Code confined the appeal to matters of law, and counsel abandoned all grounds except one: that the trial proceeded without a qualified prosecutor. The record showed that although named prosecutors appeared on some mention dates, no prosecutor's name was recorded from the commencement of the substantive trial on 6th April 1998 until judgment on 9th September 1998, when Sergeant Maina was named as prosecutor. Relying on Elirema & Another v R [2003] KLR 537, the Court held that the Attorney-General cannot appoint a police officer below the rank of Assistant Inspector of Police as a public prosecutor, that the power of appointment under section 85(2) must be exercised personally and in writing under his hand and cannot be delegated, and that the prosecution was not conducted by persons properly appointed under section 85(2). The Court declined to infer a tacit permission under section 88(1), holding that judicial discretion requires material on which to be based. It found the trial a nullity, quashed the conviction, set aside the death sentence, and declined a retrial on the prosecutor's concession, ordering the appellant set at liberty forthwith unless otherwise lawfully held.

Key legal issues

Validity of a trial prosecuted by an unqualified prosecutor

Holding

The trial was a nullity because there was no clear evidence on the record that the prosecution was conducted by a person properly appointed under section 85(2), and the benefit of the doubt went to the appellant.

Reasoning

Section 85(2) permits the Attorney-General to appoint in writing, and only, an advocate or a public servant not below the rank of Assistant Inspector of Police as public prosecutor. The record showed the prosecutor's name was not recorded after 17th March 1998, and the person named at judgment was Sergeant Maina. Relying on Elirema v R, the court held the case was not prosecuted by properly appointed persons; the magistrate's possible tacit permission under section 88(1) could not be inferred absent circumstances necessitating it.

p. 2

Retrial after a null trial

Holding

No retrial was ordered because the respondent conceded it would prejudice the appellant; the appellant was set at liberty.

Reasoning

Although the court had power to order a retrial after quashing a conviction, the Assistant Deputy Public Prosecutor properly submitted that a retrial would be prejudicial to the appellant. On that concession the court declined a retrial and directed that the appellant be set at liberty unless otherwise lawfully held.

p. 3

Legal principles established

A criminal trial prosecuted by a person not appointed in writing by the Attorney-General under section 85(2) of the Criminal Procedure Code, and not permitted by the trial magistrate under section 88(1), is a nullity.
The Attorney-General has no power to appoint a police officer below the rank of Assistant Inspector of Police as a public prosecutor, and the power to appoint public prosecutors under section 85(2) cannot be delegated and must be exercised in writing under his hand.
A magistrate's permission under section 88(1) to conduct a prosecution is a judicial discretion requiring material upon which to be based; it cannot be implied in the absence of circumstances necessitating permission for a police officer below Assistant Inspector rank to prosecute.

Court orders

1.Quash the appellant's conviction for robbery with violence contrary to section 296(2) of the Penal Code
2.Set aside the sentence of death imposed on the appellant
3.The appellant be set at liberty forthwith unless otherwise lawfully held

On appeal from: High Court of Kenya at Nakuru; H.C.CR.A. No. 48 of 1999
Jurisdiction invoked: Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Justus Korir Sambu v Republic [2008] KECA 14 (KLR)", Case Analysis (2008). Criminal Appeal 177 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/14/eng@2008-10-03

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