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REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
CRIMINAL APPEAL NO 217 OF 2003
Between
NYAKUNDI and ANOTHER
V
REPUBLIC
Criminal Practice and Procedure – conduct of prosecution - prosecution by unqualified persons – prosecution conducted by police officer of the rank of Police Constable - prosecution later conducted by Police Inspector - whether proceedings proper.
Criminal Practice and Procedure – retrial – circumstances in which a retrial can be ordered - prosecution nullified for being conducted by an unauthorised person - no evidence that it would be difficult to trace witnesses - whether proper to order retrial.
The appellants were tried, convicted and sentenced to death on charges of robbery with violence. The prosecution had been conducted by a police officer of the rank of police constable contrary to section 85(2) of the Criminal Procedure Code. After a break the prosecution was conducted by an officer of the rank of Inspector.
Held:
1. Police Constable Nakori was clearly not …