REPUBLIC V SAMWEL KIPNG'ENO BIRIR [2009] KEHC 173 (KLR)

1. Criminal Law

2. Criminal Procedure and Practice.

3. Oral Application for stay of proceeding pending appeal under Section 379(5) of the Criminal Procedure Code.

4. Application opposed.

a)             Section 379(5)CPC deals with a completed appeal.

b)             Under trial of public interest does not cover this case.

5. Held.

1)             That the Section 379 (5) CPC does not cover situation of stay of proceedings pending appeal.

2)             Application rejected.

6. Case Law– Nil.

7. Advocate

R.K. Koech state counsel instructed by the Attorney General for the State – present

J.K. Koskei advocate instructed by M/S Koskei & Tegekyon & co. advocates for the accused/appellant – present.

REPUBLIC …………………………………… PROSECUTION

VERSUS

SAMWEL KIPNG’ENO BIRIR ……………………. ACCUSED

RULING

I: Oral application

1. That the state intends to appeal against this court’s orders in rejecting a witness under Section 127 of the Evidence Act and accordingly now seeks orders of stay of proceedings pending appeal. This is the application made by the state.

2. The defendant objects to this application on grounds that Section 379(5) CPC that is being relied on, is not applicable.

II: Findings

3. The application for stay of proceedings is hereby rejected by the court.

4. This trial to accordingly proceed for hearing.

DATEDthis 16th day of December, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

R.K. Koech state counsel instructed by the Attorney General for the State – present

J.K. Koskei advocate instructed by M/S Koskei & Tegekyon & co. advocates for the accused/appellant – present.