Duncan Gichohi Gatugi v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal No. 269 & 270 of 2003 DUNCAN GICHOHI GATUGI………………….....................……………….APPELLANT VERSUS REPUBLIC………………………………….........………………………..RESPONDENT CRIMINAL APPEAL NO. 270 OF 2003 PAUL WANJAU WAHOME…………….................……………………….APPELLANT VERSUS REPUBLIC……………………………………….......…………………..RESPONDENT (Being appeals from the Judgement of C. D. Nyamweya, Senior Resident Magistrate, dated 13th May, 2003. In the Chief Magistrate’s Court Nyeri, Criminal Case No.2276 of 2002) JUDGEMENT Duncan Gichohi Gatugi, hereinafter referred to as the First Appellant and Paul Wanjau Wahome, hereinafter referred to as the Second Appellant were jointly charged with robbery with violence contrary to section 296 (2) of the Penal Code and were each convicted and sentenced to death. They appealed and during the hearing of their appeals, we consolidated their appeals. However, before the Appellants addressed the court, the learned Principal State Counsel, Mr. Orinda, rightly pointed out that the trial of the Appellants was a nullity because the prosecution, Corporal Mwangi, was not qualified in terms of Section 85 (2) of the Criminal Procedure Code, to prosecute. Mr. Orinda therefore conceded the two appeals adding that there was a further defect in that the record made by the trial magistrate during the hearing does not show that witnesses were being sworn. He also pointed out that the evidence relied upon by the learned trial magistrate to convict Appellants was not sufficient to sustain that conviction. We have looked at the relevant record and we entirely do agree with what Mr. Orinda said. In the circumstances we do hereby declare the trial of the appellants a nullity, allow each appeal; quash the

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