JAMES MAINA NJUGUNA V. REPUBLIC

JUDGMENT OF THE COURT

This is a second appeal from the decision of Juma and Mitey, JJ. on first appeal from the judgment of the Senior Resident Magistrate M. G. Rintari.

It is clear from the proceedings beginning on 7th July, 2000 that from the outset, the prosecutor was Senior Sergeant Kigera. He continued to appear as the prosecutor throughout the trial covering the evidence of the six prosecution witnesses and part of the trial within a trial until Inspector Muriuki took over as prosecutor on 21st September, 2000 the day on which the prosecution case was closed.

Senior Sergeant Kigera was not qualified under section 85 (2) of the Criminal Procedure Code Cap 75 to be a Court Prosecutor since he was a police officer below the rank of Assistant Inspector of Police.

It has been held that in cases in which an unqualified person acts as court prosecutor, in anything other than mentions, the proceedings are a nullity – see the case of Elirema and Another v. Republic [2003] 1 KLR 537.

Mr. Orind…