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(2003) JELR 95141 (CA)

Court of Appeal  •  Criminal Appeal 217 of 2003  •  28 Nov 2003  •  Kenya

Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, John walter Onyango Otieno



This is an appeal from the judgment of the superior court (Wambilyangah J) delivered on 25th September 2002. In the Memorandum of Appeal (which is stated to be petition of appeal) five grounds of appeal are set out but when the appeal came up for hearing on 25th November 2003, Mr Onsongo, counsel for the appellants, was of the view that the appeal could be decided upon one ground only which was to the effect that there was a mistrial before the Senior Resident Magistrate’s Court. The fourth ground of appeal stated:-

“4. The entire trial was a nullity as the court prosecutor was not a person entitled to prosecute on the basis of the provisions of section 85 (2) of the Criminal Procedure Code.”

The appellants herein, Thomas Ogamba Nyakundi and Jairus Mose Nyakundi were jointly charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on the 24th day of September 2001 at about 8.00 pm at Nyaigesa village Miruka sub loc…

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