REPUBLIC OF KENYA
PETER WANGATHI KARURU……………………………….………APPELLANT
Versus
REPUBLIC……………………………………………………………..RESPONDENT
(Appeal from judgment dated 26 th November, 2002 in the Chief Magistr ate’s Court, Nyeri, Criminal Case No. 2126 of 2002, by C. D. Nyamweya, Senior Resident Magistrate).
JUDGMENT
The Appellant was charged in four counts. On Count I he was charged with robbery with violence contrary to Section 296(2) of the Penal Code and it was alleged that on the night of 8th and 9th August, 2002 at Kiangoma Village in Nyeri District, the Appellant jointly with others not before court robbed Margaret Muoti Kimani of one radio cassette, one jacket, one padlock and a motor vehicle ignition keys using violence.
On Count II the Appellant was charged with having suspected stolen property contrary to Section 323 of the Penal code. That offence was alleged to have been committed on 18th August, 2002 at Kiawamarathe Village when the Appellant was detained and searched by two police officers in exercise of their powers under Section 26 of the Criminal Procedure Code and was found with assorted shop goods.
On Count III the Appellant was charged with being in possession of public stores contrary to Section 324(3) of the Penal Code. That was also on 18th August, 2002 when the Appellant was found with a kit box suspected to have been stolen from the Police Force.
There was an alternative count of handling stolen goods contrary to Section 322 (2) of the Penal Code and he was alleged to have dishonestly received or retained a jacket, a padlock and a motor vehicle ignition keys.
The Appellant was prosecuted, convicted and sentenced on counts I, II and III. He appealed and during the hearing of his appeal before us, the learned Provincial State Counsel, Mr. Orinda conceded the appeal pointing out that the trial of the Appellant was a nullity because part of the prosecution was conducted by a prosecutor who was not qualified in terms of Section 85 (2) of the Criminal Procedure Code. Mr. Orinda added that he was not asking for a re-trial.
From the record of proceedings before the trial magistrate, there is no dispute that although prosecution of the case was started by a Police Inspector, there were subsequent and substantial proceedings which were prosecuted by Sergeant Kigera who was not qualified in terms of Section 85 (2) . The whole trial was thereby rendered a nullity.
Accordingly, we do hereby allow the Appellant’s appeal. Quash his conviction on each count and set aside the sentence thereof. We order the Appellant be set at liberty forthwith unless lawfully detained in some other cause.
Dated this 18th day of November 2004.
J. M. KHAMONI
JUDGE
H. M. OKWENGU
JUDGE