Edward Abuga Mirioba & Hebron Ontweka Meriaba v Republic [2018] KEHC 4755 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL APPEAL NO. 16 OF 2017

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 17 OF 2017

EDWARD ABUGA MIRIOBA................1ST APPELLANT

HEBRON ONTWEKA MERIABA....... 2ND APPELLANT

VERSUS

REPUBLIC.................................................. RESPONDENT

(Appeal from the original conviction and sentence of Hon. A.K Mokoross  – SRM dated 11th November 2016 at the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 1256 of 2014)

JUDGMENT

The appellants, EDWARD ABUGA MIRIOBA and HEBRON ONTWEKA, were charged with three counts of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya).  The trial commenced before Hon. Munyendo, RM who heard the key identification witnesses.  When Mokoross, SRM took over the matter, he did not comply with the provisions of Section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).

In the circumstances, I am constrained to allow the appeal and quash the conviction and sentence.  However as the matter is not very old and there is serious evidence against the appellants, I order a retrial.  The accused shall remain in custody and shall be taken to Kilgoris Magistrate’s Court to take fresh plea on 14th August 2018.

Dated and delivered at Kisii this 9th day of August 2018.

D.S MAJANJA

JUDGE

Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.

Appellants in person.