PETER NDUNGU V. REPUBLIC

JUDGMENT OF THE COURT

Mr. Chirchir, the learned counsel who represented the Republic in this appeal, readily conceded the appeal on two grounds. We think Mr. Chirchir was right in doing so. The first ground on which the concession was made was that during the trial before the first magistrate, Kadima Esq., a Sgt. Maina conducted the prosecution on behalf of the Republic. Sgt. Maina led Police Constable Salim Mohamed (P.W.3) through the latter’s evidence. That was contrary to the principle set out in the well-known case of ELIREMA and ANOTHER v. REPUBLIC [2003] KLR 537. On that ground alone, the appeal was bound to succeed.

The second ground on which Mr. Chirchir conceded the appeal is this. The trial of the appellant was conducted before two magistrates. Mr. Kadima heard the evidence of all the prosecution witnesses and ruled that the appellant had a prima facie case to answer. Mr. Kadima was thereafter transferred and he ordered that the appellant’s case should proceed before Miss. L. …