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Andrew Okoth Simba v. Republic

(2009) JELR 105646 (CA)

Court of Appeal  •  Criminal Appeal 309 of 2008  •  7 Aug 2009  •  Kenya

Philip Kiptoo Tunoi, Daniel Kennedy Sultani Aganyanya, Joseph Gregory Nyamu



ANDREW OKOTHI SIMBA, the appellant, was charged in the superior court at Kisii with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The facts of the case were that on the 15th day of April, 2004 during day time at Kokech Location in Rachuonyo District within Nyanza Province murdered GEORGE OTIENO SIMBA, the deceased. Seven witnesses called by the prosecution in the case testified before and their evidence was recorded by a Judge of the superior court Honourable (Kaburu Bauni, J.) who also summed it up to the assessors. After the assessors returned their opinion, the learned Judge then set the judgment date on notice. Though there is no rule which specifically prohibits this practice, we do not think it is right to use it in practice to set judgments in criminal cases. However, after the judgment date had been set as aforesaid, the learned Judge passed on and the case was taken over by a new Judge posted to the station (Mus…

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