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Nixon Omondi Okoth v. Republic

(2011) JELR 96400 (CA)

Court of Appeal  •  Criminal Appeal 224 of 2003  •  13 May 2011  •  Kenya

Coram
Philip Kiptoo Tunoi, Philip Nyamu Waki, Joseph Gregory Nyamu

Judgement

JUDGMENT OF THE COURT

The State, through Mrs. Ouya, (DPC) concedes this appeal on the one ground raised by the appellant that the trial was a nullity as the prosecution was conducted in part by a person who was not qualified under section 85 (2) of the Criminal Procedure Code to do so. It is indeed so, that the prosecution of the charge laid against the appellant commenced before Vihiga Principal Magistrate on 28th March, 1997 and was conducted by an Inspector of Police, one Simiyu, who was qualified to prosecute. Eight of the nine prosecution witnesses who testified in the trial were summoned by that prosecutor, but the record shows that on the 8th January, 1998 when PW5 testified, the prosecutor was one Senior Sergeant Sirengo, who had no business conducting the prosecution. As such, the entire trial was vitiated since that part of the trial cannot be separated from the rest. It was a nullity. It follows that the conviction recorded against the appellant must be and is hereby quashed…

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