B.m.n v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO. 87 OF 2002 (From original conviction and sentence of the Chief Magistrate’s Court at Nakuru in Criminal Case No. 2741 of 2000 – H. WASILWA) B.M.N…...……….APPELLANT VERSUS REPUBLIC………………………………………RESPONDENT JUDGMENT The Appellant, B.M.N, was charged with the offence of rape contrary to Section 140 of the Penal Code. The particulars of the offence were that on the 27th of December 2000 at Rhonda Estate, Nakuru, the Appellant had carnal knowledge of L.N without her consent. The Appellant pleaded not guilty to the charge. After a full trial the Appellant was convicted as charged and sentenced to seven years imprisonment with five strokes of the cane. The Appellant was aggrieved by the said conviction and sentence and has appealed to this Court. At the hearing of the Appeal, Mr Koech, Learned State Counsel conceded to the Appeal on the sole ground that the proceedings before the trial magistrate were conducted by an incompetent Police prosecutor. Mr Koech, however urged this Court to order that the Appellant be retried in view of the overwhelming evidence that was adduced against him. The Learned State Counsel further submitted that only a few witnesses testified in the case and therefore an order for retrial would not occasion any hardship on the Appellant as his case would in most probability be heard within a very short time. The Appellant on his part objected to being retried. He submitted that he had served nearly three years of the term imposed by the trial magistrate. He urged the Court to discharge him. I have considered the submissions made by the Appellant and by Mr Koech on behalf of the state. I have also read the proceedings before the trial magistrate. It is not denied that criminal proceedings were prosecuted Sergeant Winnie. She is a Police Officer of a rank lower than that of an Assistant Inspector of Police. She was thus not authorised to prosecute criminal cases in accordance with the provisions of Section 85(2) and Section 88 of the Criminal Procedure Code. In the case of Roy Richard Eliremah & Anor. –versus- Republic C.A. Cr. Appeal No. 67 of 2002 (Mombasa) it was held by the Court of Appeal that where such a Police Officer prosecutes a criminal case before a Magistrate’s Court, the proceedings thereto will be a nullity. I do declare the proceedings of the trial magistrate in respect of which this Appeal arose to be a nullity, as a consequence of which the Appeal is allowed, the conviction quashed and the sentence imposed set aside. The issue that remains for the determination of this Court is whether or not to order the Appellant to be retried. Mr Koech has submitted that overwhelming evidence was adduced in support of the charge against the Appellant in the vitiated trial. He further submitted that only four witnesses testified and therefore the Appellant would not suffer undue prejudice if he is retried. On the other hand, the Appellant has submitted that he has served nearly three years of the term of seven years imprisonment imposed by the trial magistrate. The Appellant submitted that he should therefore be discharged. I have considered the rival submissions made. The conditions to be considered by this Court before making an order of a retrial are well settled. The conditions are, interalia , whether the Prosecution has to establish that it can avail witnesses during the retrial of the case. The Court has to consider that there was sufficient evidence adduced by the Prosecution in the vitiated trial so as not to afford the Prosecution an opportunity to fill in gaps during the retrial of the case. Another issue to be considered is whether the

page 1 of 2