Roy Richard Elirama and Vincent Joseph Kessy, who had...

Roy Richard Elirama and Vincent Joseph Kessy, who had been sentenced to death on four counts of robbery with violence, escaped the hangman's noose after the Kenyan Appeal Court ruled that the two policemen who had prosecuted their case were unqualified.
In a landmark ruling the three judges said police officers below the rank of inspector were not legally empowered to be public prosecutors.
Mr Justice R.S.C. Omolo, Mr Justice P.K. Tunoi and Mr Justice A.A. Lakha, sitting in Mombasa, said the trial of the appellants, in which the two corporals acted as public prosecutors "must be declared a nullity". They added: "We now do so with the result that all the convictions recorded against the two appellants must be and are hereby quashed and the sentences set aside."They said the provision of Section 85(2) of the Criminal Procedure Code are that, to be appointed a public prosecutor, one must be either an advocate of the High Court or a person employed in the public service. In the latter case, the person ought to be a police officer not below the rank an assistant inspector, they said. They said the law stipulates who is qualified to be a public prosecutor as opposed to a private one who, they argued, is simply any person prosecuting with the permission of the court granted under Section 88(1) of the Criminal Procedure Code.
They further argued that the corporals did not even ask the trial magistrate to allow them, under Section 88(1) of the code, to prosecute as private persons. In one of his grounds of appeal, defence lawyer Timothy Bryant had argued that the two prosecutors were not, in law, qualified to conduct the prosecution, making it a mistrial.