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Richard Charo Mole v. Republic

(2010) JELR 94401 (CA)

Court of Appeal  •  Criminal Appeal 135 of 2004  •  5 Mar 2010  •  Kenya

Samuel Elikana Ondari Bosire, Philip Nyamu Waki, Erastus Mwaniki Githinji



This is a second appeal which raises two issues of law, each one of which is capable fordisposing of it. The grounds raised by learned counsel for the appellant, Mr. Kenyariri, andconceded by PrincipalState Counsel Mr. Kaigai, state as follows:

“1. THAT the first appellate court Judges erred in Law by failing to declare the whole trial a nullity as it was held in contravention of section 85 (2) and section 88 of the Criminal Procedure Code.

2. THAT the learned High Court Judges erred in law by failing to find that the provisions of section 200 of the Criminal Procedure Code were not complied with.”

Simply put, ground (1) attacks the entire trial on the basis that part of the prosecution of the case was conducted by an unqualified person. Section 85 (2) of the Criminal Procedure Code which was applicable at the time of the trial of the appellant provided for appointment of public prosecutors by the Attorney General and specified categories of such appointments as “an …

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