JUDGMENT OF THE COURT
This is an appeal from a conviction and sentence of the High Court of Kenya at Kisumu (B. K. Tanui and J.W. Gacheche JJ) dated 6th March, 2003 in Criminal Appeal No. 304 of 2001.
The appellant is Pascal Ouma Ogola. Mr. D. I. Musau Senior Principal State Counsel appeared for the State. At the outset of the hearing Mr. Musau stated that he would concede the appeal due to persons unqualified to act as prosecutors having so acted at several stages in the proceedings.
The record makes it clear that the evidence of PW1 was led by P.C. Wanyonyi and the evidence of PW4 was led by Corporal Nyongesa. We agree with Mr. Musau that in these circumstances the trial was a nullity following the decision of this Court in Elirema and Another v. Republic  KLR.
We have considered whether or not we should order a re-trial. The alleged offences were committed on 9th February, 2000 and the appellant has already been in custody for 5 years. The main critical issues amongst others at t…