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Julius Ole Koikai v. Republic

(2011) JELR 100440 (CA)

Court of Appeal  •  Criminal Appeal 214 of 2007  •  11 Nov 2011  •  Kenya

Coram
Samuel Elikana Ondari Bosire, Daniel Kennedy Sultani Aganyanya, Philip Nyamu Waki

Judgement

RULING OF THE COURT

The hearing of this appeal has stalled because it was discovered that there was variance between the typed copies of proceedings of the trial court and the handwritten record. The trial magistrate, Mrs. Jane Ondieki swore an affidavit in which she disowned a substantial part of the handwritten proceedings. The impugned parts of those proceedings show that witnesses who testified were not sworn before they did so, and that the trial court did not comply with the provisions of section 211 of the Criminal Procedure Code, which requires a trial court on finding that an accused has a case to answer to explain to him his rights in putting up his defence to the charge or charges against him. It is trite law that a failure to comply with that provision renders the proceedings thereafter fatally defective, and whoever tampered with the trial court’s handwritten record must have intended to create a reason for seeking to declare the proceedings a nullity.

Likewise if witnesses…

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