REPUBLIC v JOSEPH MUNOKO NANDA [2010] KEHC 2180 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Criminal Revision 4 of 2009

RULING

REVISON

I.Background

(1)A trial had commenced against one Joseph

Munoko Nanda, a male adult for the offence of

Defilement of a Minor child aged 5 years old

then.

(2)He pleaded not guilty and his trial began on 23rd

September 2006. The mother to the victim (P.W.1)and the minor (P.W.2) gave evidence before Chief Magistrate F.N. Muchemi (as she then was).She was assigned duties inNairobi.Two years later the police suggested the trial begin from where it had stopped.On 14th July 2008, another Chief Magistrate S.N. Riech took evidence of a medical doctor who produced a P.W.3 on behalf of a colleague. The witness was availed as P.W.1. Thenthe evidence of a police officer was taken down described as P.W.7. A third Chief magistrate C.G. Mbogo took over the trial and was informed that the proceedings to proceed from where it had left off- by the Advocate for theaccused.P.W.1 and 2 were recalled for cross-examination and not for a fresh hearing.They were examined by the said advocate further.

(3)The proceedings were typed.The Hon. Chief

Magistrate referred this matter by an order of the

Court on 14/9/2009 on the irregularities

undertaken in this matter.

(4)A revision file was opened.

II.Opinion

(5)The proceedings of the subordinate Court file is

most certainly irregular and contrary to natural

law and justice.Section 200(3) Civil procedure

Rules had not been complied with.It is unclear

whether the trial was to begin De novo or not.

(6)I hereby order that the trial and proceedings begin

De novo and the accused be retrieda fresh.That

the hearing proceeds on a day to day basisuntil

the sameis finalized beforeone trial magistrate.

(7) Obiter Dictum, Trial by instalments must at all

times be discouraged .

DATED THIS 28THDAY OF MAY 2010 AT ELDORET.

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M.A. ANG’AWA

JUDGE.