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Philip Kipngetich Terer v. Republic

(2015) JELR 96437 (CA)

Court of Appeal  •  Criminal Appeal 327 of 2010  •  25 Sep 2015  •  Kenya

Coram
David Kenani Maraga, Daniel Kiio Musinga, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

1. When this appeal came up for hearing before us on 30th June, 2015, Mr. Ogoti, Senior Assistant Director of Public Prosecutions, conceded it on the ground that Lenaola, J. did not comply with Section 200(3) of the Criminal Procedure Code (the CPC), having taken over the trial of the case from G.B.M. Kariuki, J. (as he then was).

2. Mr. Ogoti however sought a re-trial arguing that justice demands it. He said the prosecution is not to blame for the error and that it will avail its witnesses to testify once again.

3. Although he welcomed the concession, Mr. Katwa Kigen, learned counsel teaming up with Mr. Onyango Jamsumbah for the appellant, strongly opposed the plea for a re-trial. He argued that the appellant has been incarcerated for over fifteen years during which his case has been heard by three Judges. Even if the appellant were culpable, which the defence does not admit, the fifteen years the appellant has been incarceration is more than enough punishment. He …

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