REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI HCCR APP NO 239 OF 2003 SAMUEL KIRAGU KAMAU…………...............................................………….….APPELLANT VERSUS REPUBLIC………………………….........................................……….………..RESPONDENT (Appeal from original Judgment and Conviction in the Senior Principal Magistrate’s Court at Murang’a in Criminal Case Number 1002 of 2002 by G. K. Mwaura – S.R.M.) JUDGMENT Samuel Kiragu Kamau, the Appellant herein was convicted by the Senior Resident Magistrate Murang’a of attempted Rape Contrary to Section 141 (1) of the Penal Code, and assault contrary to Section 251 of the Penal Code. He was sentenced to serve 7 years imprisonment on the first count and 2 years imprisonment on the second count. Being aggrieved by his conviction the Appellant has lodged this appeal. Learned Principal State Counsel Mr. Orinda has conceded this appeal recognizing the fact that the prosecution of the case in the Lower Court was conducted by a police constable. I concur that P.C. Machuki the officer who prosecuted the case in the Lower Court was not a competent officer as provided under Section 85 (2) of the Criminal Procedure Code. The conviction of the Appellant cannot therefore stand as his trial was a nullity. I further agree with learned Principal State Counsel that it would not be in the interest of justice to order a retrial as the Appellant has already served more than half the sentence in respect of count 1, and the full sentence in respect of count 2. I therefore allow this appeal, quash the conviction and set aside the sentence imposed. The Appellant shall be forthwith set free unless otherwise lawfully held. Dated, signed and delivered at Nyeri this 29th day of May 2006. H. M. OKWENGU JUDGE
A note on accuracy. These pages are generated automatically from our AI-written case briefs and have not been checked by a lawyer. Case titles and citations come from Kenya Law; the counts, topics, propositions and “treatment” labels are derived from the briefs and can be incomplete or wrong. Use them as a research aid and always read the original judgment before relying on anything here. This is not legal advice.