P S v Republic [2020] KECA 843 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a conviction because the prosecutor was not legally qualified, but ordered the accused to face a fresh trial rather than go free.
What this practically means
#Executive summary
#Key legal issues
#Qualification of a prosecutor under the Criminal Procedure Code
Pursuant to sections 85(2) and 88(1) of the Criminal Procedure Code, a police constable without general or special authorisation from the DPP was unqualified to conduct the prosecution, rendering the trial a nullity.
Section 88(1) permits prosecution only by a public prosecutor or an officer generally or specially authorised by the DPP, and section 85(2) limits appointment of public prosecutors to advocates of the High Court or persons employed in the public service appointed in writing by the DPP. PC Ihaji held no such authority, so the purported prosecution was a nullity. The Court relied on Roy Richard Elirema confirming no power to appoint a police officer below the rank of assistant inspector.
Duty of the first appellate court to consider all grounds raised before it
The High Court erred in failing to consider and determine whether prosecution by an unqualified prosecutor rendered the case a nullity, even though the ground was raised before it.
The record showed the appellant raised the unqualified-prosecution ground both in the High Court appeal and in written submissions, but the first appellate court made no determination on it. The Court held this omission was an error, treated it as a matter of law open on second appeal, and itself considered the issue, since a second appeal is confined to matters of law.
Whether to order a retrial after a mistrial
A retrial was ordered because the offence was serious, the complainant was very young, key witnesses were related and likely available, and although the appellant had been in custody for about 8 years, the interests of justice favoured a de novo trial.
Applying Muiruri v R and Joseph Muriuki Wachira, the Court weighed the harrowing ordeal of a two-year-old complainant, the gravity of the charge, the appellant's approximately 8 years in custody since 2 July 2011, the familial relationship ensuring witness availability, and the complainant now being 11. It concluded that justice required a retrial before a different Magistrate, with the appellant remaining in custody pending production within 14 days.
Legal principles established
#- A second appellate court considers only matters of law under section 361 of the Criminal Procedure Code and cannot interfere with findings of fact unless the lower courts considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
- A prosecution conducted by a person not authorised under sections 85(2) and 88(1) of the Criminal Procedure Code renders the entire trial a nullity and a mistrial.
- On a mistrial, whether a retrial is ordered depends on the circumstances of the case; it will be ordered only where the interests of justice require it and it is unlikely to cause injustice to the appellant.
Court orders
#- 1.The proceedings before the trial court declared a nullity and a mistrial
- 2.The conviction of the appellant quashed
- 3.The sentence meted out by the trial court and confirmed by the first appellate court set aside
- 4.The appellant to be tried de novo before a different Magistrate
- 5.The appellant to remain in prison custody pending his production before the Magistrate in-charge, Narok Law Courts within 14 days from the date of the judgment for retrial
- On appeal from
- High Court of Kenya at Nakuru
- Criminal Case No. 150 of 2012
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P S v Republic [2020] KECA 843 (KLR)", Case Analysis (2020). Criminal Appeal No. 200 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/843/eng@2020-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.