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Peter Ndungu Kihiko v. Republic

(2004) JELR 99846 (CA)

Court of Appeal  •  Criminal Appeal 162 of 2003  •  21 Sep 2004  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji

Judgement

JUDGMENT OF THE COURT

The appellant herein was convicted of robbery contrary to section 296 (1) of the Penal Code but when the appeal came up for hearing before Muga Apondi, J. he revised the conviction to robbery with violence contrary to section 296 (2) of the Penal Code. The learned counsel for the appellant has drawn our attention to the provisions of section 359 (1) of the Criminal Procedure Code which refers to appeals by two judges.

Since the practice by the High Court is that appeals be heard by two judges unless there is a written authority by the Chief Justice directing that the appeal be heard by one judge we are satisfied that there was an error on the part of Muga Apondi, J. in proceeding with the hearing of the appeal while sitting as a single judge. For these reasons we allow the appeal and set aside the conviction and sentence of death imposed on the appellant. We further direct that the appeal be re-heard by a bench of two judges. Meanwhile the appellant shall continue …

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