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MAKUPE V. REPUBLIC

(1984) JELR 105024 (CA)

Court of Appeal  •  Criminal Appeal 98 of 1983  •  18 Jul 1984  •  Kenya

Coram
Zakayo Richard Chesoni, James Onyiego Nyarangi, Alister Arthur Kneller

Judgement

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: KNELLER JA, CHESONI and NYARANGI AG JJ A)

CRIMINAL APPEAL NO 98 OF 1983

BETWEEN

HORACE KITI MAKUPE................. APPELLANT

AND

REPUBLIC......................................RESPONDENT

JUDGMENT

(Appeal from a Judgment of the High Court at Mombasa, Aragon J, dated 5th August 1983, in Criminal Appeal No 312 of 1983)

July 18, 1984, the following Judgment of the Court was delivered.

Horace Kiti Makupe of Mlaleo, Kisauni, the appellant, was convicted on May 10 1983 of obtaining by false pretences contrary to section 313 of the Penal Code and sentenced to 2 years’ imprisonment by one of Mombasa’s Senior Resident Magistrates.

He appealed to the High Court there and Mr. Justice Aragon allowed the appeal but ordered a retrial. The reason for this was that the charge was duplex which was a fundamental error and not normally curable under section 382 Criminal Procedure Code.

Mr. Kitonga for the appellant has come to this court now to have the order for a retrial se…

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