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David Odhiambo,George Omondi v. Republic

(2005) JELR 102786 (CA)

Court of Appeal  •  Criminal Appeal 5 of 2005  •  29 Jul 2005  •  Kenya

Riaga Samuel Cornelius Omolo, Erastus Mwaniki Githinji, William Shirley Deverell



DAVID ODHIAMBO and GEORGE OMONDI, hereinafter the first and the second appellant respectively, were tried and convicted by the Senior Resident Magistrate of Mombasa on two charges, one of robbery with violence contrary to section 296(2) of the Penal Code and a second one of rape contrary to section 140 of the Penal Code. On the charge of robbery with violence, it was alleged that on 6th January, 2002 at [particulars witheld] Village in Mombasa District, the appellants while armed with a knife, jointly robbed H.A. of a pair of shoes and cash K.shs. 100/= and at or immediately before or immediately after the time of such robbery, used actual violence to the said H.A. The second charge of rape against the appellants stated that on the same day at the same place the appellants had unlawful carnal knowledge of H.A. without her consent. In the charge of rape, the prosecution did not actually include the word “unlawful” in the particulars of the charge, and though no com…

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