JOHN NJOROGE GITAU & PETER MAINA GACHOYA v REPUBLIC [2006] KEHC 1252 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 379 of 2003

JOHN NJOROGE GITAU ………..............................................……............…………………..APPELLANT

VERSUS

REPUBLIC ………………………………………….......................................................…….RESPONDENT

CRIMINAL APPEAL NO. 381 OF 2003

PETER MAINA GACHOYA …………........................................................…………………APPELLANT

VERSUS

REPUBLIC …………..............................................…………….......………………………..RESPONDENT

( An appeal from the Judgment  of C.D. Nyamweya , Senior Resident Magistrate, dated

30th September, 2003;

In

Criminal Case No. 1107 of 2003 of the Chief Magistrate’s Court, Nyeri.)

JUDGMENT

The learned Provincial State Counsel Mr. Charles Orinda, concedes  these appeals on the  ground that the prosecutor was not qualified in terms of Section 85(2) of the Criminal Procedure Code.  The State Counsel does not ask for retrial.

There is also the fact that the record made by the learned trial Magistrate during  the trial does not show that witnesses were being sworn before they gave evidence  and in the circumstances  we have to assume that  witnesses  were not being sworn and that  the evidence on record was not taken in accordance  with the law.

The above being the position, we do hereby declare  the trial of the appellants a  nullity.  Allow the appeal of each appellant.  Quash the conviction of each appellant and set aside the sentence imposed.Each appellant shall be released forthwith unless lawfully detained in some other cause.

Dated this 26th day of September, 2006.

J.M.KHAMONI

JUDGE

H.M. OKWENGU

JUDGE