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Shimavu Ole Kumur v. Republic

(2010) JELR 94258 (CA)

Court of Appeal  •  Criminal Appeal 475 of 2007  •  28 May 2010  •  Kenya

Emmanuel Okello O'Kubasu, Philip Nyamu Waki, Erastus Mwaniki Githinji



Only one ground of appeal was argued by learned counsel for the appellant, Mr Ondieki, which ground was conceded by learned Senior Principal State Counsel, Mr Omirera. As it turned out, part of the proceedings before the trial court were conducted by an unqualified prosecutor thus rendering the entire trial a nullity.

The appellant appeared before Kibera Chief Magistrates Court for his trial on two counts of robbery with violence contrary to section 296 (2) of the Penal Code, one Count of rape contrary to section 140 of the Penal Code and an alternative charge of indecent assault of a female contrary to section 144 (1) of the Penal Code. The offences were alleged to have been committed on 25th and 28th November 2001 and the actual trial commenced on 5th April 2002 before Githinji (S.R.M). Between that date and 17th June 2002 three prosecution witnesses had testified although five more were lined up to give their evidence. The prosecutor at the time was an Inspector…

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