Pubdate: Mon, 22 Nov 2004
Source: Daily Nation (Kenya)
Copyright: 2004 Nation Newspapers
Author: Timon Kosgei


In a criminal case, no police officer of lower in rank than that of
assistant police inspector is allowed to conduct prosecution in a
magistrate court, either partially or fully.

If he so does, then this will render the entire proceedings a nullity,
a consequence of which if one had been convicted on this basis and he
appeals, then appeal shall be allowed. However the appellate court may
order retrial of the case afresh if the prosecution requests so and
upon looking at the circumstances of the case, the judge thinks that
the case merits re trial

Gordon Odhiambo Ogutu V. Republic High Court of Kenya, at Nakuru
Criminal Appeal No.110 of 2002 Kimaru, Ag.J July 22, 2004

The appellant in this case, Gordon Odhiambo Ogutu, was charged with
the offence of trafficking Narcotic drugs contrary to Section 4(a) of
the Narcotic drugs and Psychotropic Substances Control Act (Act no. 4
of 1994).

On May 11, 2001 along the Nairobi- Narok road in Narok District, the
appellant jointly with others who were not in court, were found
trafficking 1252 stones of bhang in motor vehicle registration number
KAD 991X valued at Sh250,400 in contravention of the Act.

The appellant pleaded not guilty to the charge and after a full trial
the appellant was convicted as charged. The appellant was fined
Sh1,000,000 and further ordered to serve life imprisonment. He was
aggrieved by the conviction and sentence. He therefore appealed to the
High Court against the conviction and sentence.

At the hearing of the appeal, the Assistant Deputy Public Prosecutor
conceded to the appeal on the sole ground that the proceedings before
the trial Magistrate's court were conducted by a police officer who
was not competent and authorised to prosecute cases before the said
court contrary to the provisions of Section 85(2) of the Criminal
Procedure Code.

The State, however, urged the High Court to order that the appellant
to be re-tried in view of the serious nature of the offence he faced.
The appellant submitted that he had been in prison for three years and
urged the Court to consider this in its judgment.

The high court perused the proceedings that had come before the trial
Magistrate in this case. The judge noted that a substantial part of
the proceedings were prosecuted by a police constable, one Ihaji. That
he was a police officer of a rank lower than that of an Assistant
Inspector of police. He was thus not authorised to prosecute criminal
cases before the said magistrate's court in accordance with the
provisions of Section 85 (2) and Section 88 of the Criminal Procedure

In a decided case of a similar nature, the Court of Appeal held that
where such a police officer prosecutes a case before a magistrate's
court, the proceedings thereto will be a nullity. The judge propounded
that he was bound by that decision, since it was a decision of a more
superior court - Court of Appeal.

Declared the proceedings before the trial magistrate's

He therefore declared the proceedings before the trial magistrate's
court in this case to be a nullity, a consequence of which appeal was
allowed, the conviction quashed and the sentence set aside.

Counsel for the State urged the court to order the appellant to be
retried. The appellant submitted that the court should consider the
fact that he had served three years in prison. The judge read the
evidence that was adduced by the Prosecution in the voided
proceedings. He expostulated that the evidence adduced was sufficient
to convict the appellant for the offence that he was charged with.

The judge stated that it could not be said that the prosecution would
be given an opportunity of filling up gaps in its case if a retrial
was ordered. He contended that the appellant was charged with
trafficking a not insubstantial amount of bhang.

Even though the appellant had served three years imprisonment, it was
the finding of the court that considering all the circumstances of the
case, it would serve the ends of justice for retrial to be ordered.

The judge therefore ordered that the appellant be retried before
Senior Resident Magistrate, Narok, before another Magistrate other
than Senior Resident Magistrate who tried the case in the first
instance. He further directed that the appellant appear before the
said court on July 29, 2004 for the purpose of taking plea and that he
be remanded in custody pending the said appearance.
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