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Case Class: Criminal


Republic V Martin Owuor John [2017] eKLR

Case Number: Criminal Case 2 of 2015 Date Delivered: 25 Apr 2017

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Republic v Martin Owuor John

Citation: Republic V Martin Owuor John [2017] eKLR

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Mustafa Abdirahman Ali V Republic [2017]eKLR

Case Number: Criminal Appeal 98 of 2013 (Consolidated) Date Delivered: 25 Apr 2017

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Mustafa Abdirahman Ali v Republic

Citation: Mustafa Abdirahman Ali V Republic [2017] eKLR

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Republic V Samwel Michubu [2017] eKLR

Case Number: Criminal Appeal 29 of 2017 Date Delivered: 25 Apr 2017

Judge: Anne Apondi Onginjo

Court: High Court at Meru

Parties: Republic v Samwel Michubu

Citation: Republic V Samwel Michubu [2017] eKLR

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Republic V Monica Imoni Karube [2017] eKLR

Case Number: Criminal Case 39 of 2012 Date Delivered: 25 Apr 2017

Judge: Kanyi Kimondo

Court: High Court at Eldoret

Parties: Republic v Monica Imoni Karube

Citation: Republic V Monica Imoni Karube [2017] eKLR

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Republic V Dalmus Kiyapi [2017] eKLR

Case Number: Criminal Case 123 of 2014 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Republic v Dalmus Kiyapi

Citation: Republic V Dalmus Kiyapi [2017] eKLR

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Laban Kyungu Muia V Republic [2017] eKLR

Case Number: Criminal Appeal 143 of 2015 Date Delivered: 24 Apr 2017

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Laban Kyungu Muia v Republic

Citation: Laban Kyungu Muia V Republic [2017] eKLR

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Sammy Nganga Kamau V Republic [2017] eKLR

Case Number: Criminal Appeal 154 of 2014 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Sammy Nganga Kamau v Republic

Citation: Sammy Nganga Kamau V Republic [2017] eKLR

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Republic V Chrispine Odhiambo Onyaha [2017] eKLR

Case Number: Criminal Case 74 of 2011 Date Delivered: 24 Apr 2017

Judge: David Shikomera Majanja

Court: High Court at Kisumu

Parties: Republic v Chrispine Odhiambo Onyaha

Citation: Republic V Chrispine Odhiambo Onyaha [2017] eKLR

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Patrick Muriithi Ireri V Republic [2017] eKLR

Case Number: Criminal Appeal 149 of 2015 Date Delivered: 24 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Muriithi Ireri v Republic

Citation: Patrick Muriithi Ireri V Republic [2017] eKLR

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Republic V Simon Mburu Kabiro [2017] eKLR

Case Number: Criminal Case 16 of 2012 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Republic v Simon Mburu Kabiro

Citation: Republic V Simon Mburu Kabiro [2017] eKLR

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Gladys Kianji V Republic & Another [2017] eKLR

Case Number: Criminal Revision 19 of 2016 Date Delivered: 24 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Gladys Kianji v Republic & Esther Jepkemboi Tamunga

Citation: Gladys Kianji V Republic & Another [2017] eKLR

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Peter Muthini Kisuna V Republic [2017] eKLR

Case Number: Criminal Appeal 19 of 2015 Date Delivered: 24 Apr 2017

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Peter Muthini Kisuna v Republic

Citation: Peter Muthini Kisuna V Republic [2017] eKLR

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Paul Muigai King’ora V Republic [2017] eKLR

Case Number: Criminal Appeal 39 of 2014 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Paul Muigai King’ora v Republic

Citation: Paul Muigai King’ora V Republic [2017] eKLR

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Josphat Kariuki Kariuki V Republic [2017] eKLR

Case Number: Criminal Appeal 79 of 2016 Date Delivered: 24 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Josphat Kariuki Kariuki v Republic

Citation: Josphat Kariuki Kariuki V Republic [2017] eKLR

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Republic V Simon Yele Samoyo [2017] eKLR

Case Number: Criminal Case 47 of 2015 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Republic v Simon Yele Samoyo

Citation: Republic V Simon Yele Samoyo [2017] eKLR

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Sammy Nganga Kamau V Republic [2017] eKLR

Case Number: Criminal Appeal 154 of 2014 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Sammy Nganga Kamau v Republic

Citation: Sammy Nganga Kamau V Republic [2017] eKLR

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Republic V Kevin Ouma Otieno [2017] eKLR

Case Number: Criminal Case 26 of 2014 Date Delivered: 24 Apr 2017

Judge: David Shikomera Majanja

Court: High Court at Kisumu

Parties: Republic v Kevin Ouma Otieno

Citation: Republic V Kevin Ouma Otieno [2017] eKLR

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Republic V Everlyne Kemunto Moti & Another [2017] eKLR

Case Number: Criminal Case 63 of 2015 Date Delivered: 24 Apr 2017

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Republic v Everlyne Kemunto Moti & Yunia Kerubo Akama

Citation: Republic V Everlyne Kemunto Moti & Another [2017] eKLR

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M W K V Republic [2017] eKLR

Case Number: Criminal Appeal 308 of 2013 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: M W K v Republic

Citation: M W K V Republic [2017] eKLR

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Republic V Galma Abagaro Shano [2017] eKLR

Case Number: Criminal Case 41 of 2011 Date Delivered: 24 Apr 2017

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Galma Abagaro Shano

Citation: Republic V Galma Abagaro Shano [2017] eKLR

Section 206(1) of the Criminal Procedure Code is inconsistent with article 50 (2) (f) of the Constitution as it fails to address the execution of a warrant of arrest where the Accused cannot be found

 

Republic v Galma Abagaro Shano

Criminal Case Number 41 of 2011

High Court at Nairobi

S N Mutuku, J

April 24, 2017

Reported by Phoebe Ida Ayaya

 

Constitutional Law – constitutionality of statutes – claim challenging the constitutionality of statutes – whether section 206 of the Criminal Procedure Code was unconstitutional-– Constitution of Kenya, 2010 article 50; Criminal Procedure Code section 206

Statutes – interpretation of statutes – interpretation of section 206  of the Criminal Procedure Code vis-a-vis article 50(2)of the Constitution - where section 206 (4) informed the Court of what to do when the offence was a felony or where the Court refrained from convicting an absent accused person – whether the provision was unreasonable and unjustifiable under the Constitution - whether the provision was inconsistent with the Constitution – Constitution of Kenya, 2010 article 50; Criminal Procedure Code section 206

 

Brief Facts

Mr. Galma Abagaro Shano, hereinafter “the Accused” was charged with murder contrary to section 203 as read with section 204 of the Penal Code. The evidence for the prosecution was that the Accused stabbed the deceased who was his neighbor at Gatina Village. After the prosecution closed its case, the Court analyzed all the evidence tendered in court. It made a finding that the Accused person had a case to answer and in its ruling delivered on July 2015 the Court placed him on his defence. The Accused, through his defence counsel Mr. Omari, informed the Court that he would testify under oath and would not call any witness. The Court fixed the hearing date for defence case as July 16, 2015. On that day Mr. Omari was not in court. He had sent Mr. Mogaka to hold his brief. The case was adjourned to October 2015. On the scheduled date, the Accused did not turn up in court. His counsel Mr. Omari was also not present. His brief was being held by Mr. Mokua who informed the Court that Mr. Omari was trying to locate his client the Accused and would be attending court later that morning. When Mr. Omari arrived in court he informed the Court that his client had travelled to Moyale and thereafter to Mandera and that information received from the relatives of the Accused indicated that accused had fallen ill and was unable to travel to Nairobi to attend the hearing. The matter was adjourned to November 2011 for mention for purposes of confirming attendance of the accused or his whereabouts. From that date to the present, the Accused has been at large. Attempts by the Investigating Officer to track the Accused down have been unsuccessful. The execution of the warrant of arrest issued by the Court on November 10, 2015 had not been carried out. It was against that background that the Office of the Director of Public Prosecutions brought the application.

 

 

Relevant Provisions of the law

Criminal Procedure Code

Section 206 of the Code provides thus:

 206.. (1) If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.

 (2) If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.

 (3) A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment.

 (4) If the accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court.

Constitution of Kenya, 2010

Article 50 (2) (f) provides thus:

 (2) Every accused person has the right to a fair trial, which includes the right:-

 (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;

 

 

Issues

i.              Whether section 206 (1) of the Criminal Procedure Code was inconsistent with article 50 (2) (f)of  the Constitution of Kenya, 2010 as it failed to address the execution of a warrant of arrest where the Accused could not be found.

 

Held

  1. Section 206 (1) Criminal Procedure Code only addressed misdemeanors. Sub-section (4) provided for the Court what to do when the offence was a felony or where the Court refrained from convicting an absent accused person. The Court was to issue a warrant of arrest. The section did not address the situation where the Accused could not be found for the execution of the warrant of arrest.
  2. Article 50 (2)(f)  of the Constitution could not be read in isolation. It was a fact and also common sense that the rights specified could only be enjoyed by an accused person who was present during trial.
  3. By virtue of article 2 (1) and (4) of the Constitution, which was the supreme law of the Republic of Kenya, any law, including customary law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid.
  4. Article 50 (2)(f)  of the Constitution showed that every accused person had a right to a fair trial which included the right to be present when being tried, unless the conduct of the accused person made it impossible for the trial to proceed. The article did not qualify the offence facing the accused person, whether felony or misdemeanor. All accused persons before the Court enjoyed that right.
  5. Section 206 (1) of the Criminal Procedure Code on the other hand differentiated between an accused person facing a felony and that facing a misdemeanor. Where the accused was charged with a felony, sub-section (4) stated that the Court was to issue a warrant for the apprehension of the accused person and cause him to be brought before the Court. Where all efforts to track down the accused failed and he could not be arrested and presented in Court the authorities could not give up on him and let the matter lie. Justice had to be served. Section 206(1) of the Criminal Procedure Code was inconsistent with article 50 (2)(f) of the Constitution in so far as it failed to include all offences whether they were felonies or misdemeanors.
  6. The accused’s conduct that could have denied him the enjoyments of the right to be present in court during his trial included situations where for instance the accused person became violent or unruly during proceedings to such an extent that it became impossible for the Court to conduct the proceedings or where he deliberately absented himself or absconded. Care had to be taken to carefully consider the circumstances behind an accused person’s failure to attend court.
  7.  In the instant matter, the accused was aware of his case. The charges were read to him and he pleaded not guilty. He was released on bond of one million Kenya shillings (1,000,000) with one surety of similar amount or cash bail of three hundred thousand Kenya shillings (300,000). He took the alternative option and paid cash bail. He participated in the trial and heard evidence of all the prosecution witnesses. He participated in the cross examination of all the witnesses. He was placed on his defence and he addressed the Court, through his defence counsel, on the manner he wished to defend himself. He failed to turn up in court on the day his defence was scheduled to start. The investigating officer swore an affidavit explaining the efforts he put in place in an attempt to track down the accused. It had been 1 year since the accused absconded. His advocate was not aware of his whereabouts. The accused did not have a surety to be summoned to show cause. A warrant against the accused’s arrest, which the Court kept issuing afresh, could not be executed. The trial against the accused person was to proceed in the interests of justice. It had been pending since October 14, 2015. The family of the deceased deserved justice and their rights were to be considered. By absenting himself, the accused had abrogated his constitutional right to be present during his trial.

Application allowed.

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Republic V Stephen Sila Wambua Matheka [2017] eKLR

Case Number: Criminal Case 10 of 2015 Date Delivered: 24 Apr 2017

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Republic v Stephen Sila Wambua Matheka

Citation: Republic V Stephen Sila Wambua Matheka [2017] eKLR

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Tirathy Maina Karani V Republic [2017] eKLR

Case Number: Criminal Appeal 192 of 2015 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Tirathy Maina Karani v Republic

Citation: Tirathy Maina Karani V Republic [2017] eKLR

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Republic V Salim Cheruiyot Labosa & 2 Others [2017] eKLR

Case Number: Criminal Case 56 of 2010 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Republic v Salim Cheruiyot Labosa alias Kimalel, Joseph Kosgei Kibet alias Sigei & Ronald Kipkoech Misoi alias Masai

Citation: Republic V Salim Cheruiyot Labosa & 2 Others [2017] eKLR

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Simon Ngatia Mwangi V Republic [2017] eKLR

Case Number: Criminal Appeal 209 of 2013 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Simon Ngatia Mwangi v Republic

Citation: Simon Ngatia Mwangi V Republic [2017] eKLR

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Joseph Muthiani Mutiso V Republic [2017] eKLR

Case Number: Criminal Appeal 39 of 2017 Date Delivered: 24 Apr 2017

Judge: Mutungi Charles Kariuki

Court: High Court at Makueni

Parties: Joseph Muthiani Mutiso v Republic

Citation: Joseph Muthiani Mutiso V Republic [2017] eKLR

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Republic V Samuel Kilele Musembi & Another [2017] eKLR

Case Number: Criminal Case 26 of 2015 Date Delivered: 24 Apr 2017

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Republic v Samuel Kilele Musembi & another

Citation: Republic V Samuel Kilele Musembi & Another [2017] eKLR

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Paddy Ndirangu Njoroge V Republic [2017] eKLR

Case Number: Criminal Appeal 189 of 2013 Date Delivered: 24 Apr 2017

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Paddy Ndirangu Njoroge v Republic

Citation: Paddy Ndirangu Njoroge V Republic [2017] eKLR

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Republic V George Ndungu Mwangi [2017] eKLR

Case Number: Criminal Case 16 of 2015 Date Delivered: 21 Apr 2017

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Republic v George Ndungu Mwangi

Citation: Republic V George Ndungu Mwangi [2017] eKLR

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Republic V Antony Gachoki Muguongo [2017] eKLR

Case Number: Criminal (Murder) 8 of 2013 Date Delivered: 21 Apr 2017

Judge: Lucy Waruguru Gitari

Court: High Court at Kerugoya

Parties: Republic v Antony Gachoki Muguongo

Citation: Republic V Antony Gachoki Muguongo [2017] eKLR

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B M W V Republic [2017] eKLR

Case Number: Criminal Revision 2 of 2017 Date Delivered: 21 Apr 2017

Judge: Lucy Waruguru Gitari

Court: High Court at Kerugoya

Parties: B M W v Republic

Citation: B M W V Republic [2017] eKLR

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Republic V Joshua Koikai Sitaya [2017] eKLR

Case Number: Criminal Case 44 of 2015 Date Delivered: 21 Apr 2017

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Republic v Joshua Koikai Sitaya

Citation: Republic V Joshua Koikai Sitaya [2017] eKLR

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Joseph Murigu Wamae & Another V Republic [2017] eKLR

Case Number: Criminal Appeal 134 of 2013 Date Delivered: 21 Apr 2017

Judge: Jairus Ngaah

Court: High Court at Nyeri

Parties: Joseph Murigu Wamae & Paul Ndirangu Wanjiru v Republic

Citation: Joseph Murigu Wamae & Another V Republic [2017] eKLR

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Republic V Elikana Kagunda Njoroge [2017] eKLR

Case Number: Criminal Case 73 of 2012 Date Delivered: 20 Apr 2017

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Elikana Kagunda Njoroge

Citation: Republic V Elikana Kagunda Njoroge [2017] eKLR

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Michael Karanja V Republic [2017] eKLR

Case Number: Criminal Appeal 174 of 2013 Date Delivered: 20 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Michael Karanja v Republic

Citation: Michael Karanja V Republic [2017] eKLR

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Joseph Kyalo V Republic [2017] eKLR

Case Number: Criminal Appeal 44 of 2016 Date Delivered: 20 Apr 2017

Judge: Jacqueline Kamau

Court: High Court at Voi

Parties: Joseph Kyalo v Republic

Citation: Joseph Kyalo V Republic [2017] eKLR

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Republic V Jacob Kithome & Another [2017] eKLR

Case Number: Criminal Case 13 of 2015 Date Delivered: 20 Apr 2017

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Republic v Jacob Kithome & Francis Ngui

Citation: Republic V Jacob Kithome & Another [2017] eKLR

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Ramadhan Hussein V Republic [2017] eKLR

Case Number: Criminal Appeal 45 of 2016 Date Delivered: 20 Apr 2017

Judge: Jacqueline Kamau

Court: High Court at Voi

Parties: Ramadhan Hussein v Republic

Citation: Ramadhan Hussein V Republic [2017] eKLR

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Peter Nalianya V Republic [2017]eKLR

Case Number: Criminal Appeal 198 of 2013 Date Delivered: 20 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Peter Nalianya v Republic

Citation: Peter Nalianya V Republic [2017] eKLR

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Republic V Peter Kibe Wamugi [2017] eKLR

Case Number: Criminal Case 70 of 2017 Date Delivered: 20 Apr 2017

Judge: Edward Muthoga Muriithi

Court: High Court at Kabarnet

Parties: Republic v Peter Kibe Wamugi

Citation: Republic V Peter Kibe Wamugi [2017] eKLR

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Republic V Gilbert Kipkorir Koech [2017] eKLR

Case Number: Criminal Case 58 of 2017 Date Delivered: 20 Apr 2017

Judge: Edward Muthoga Muriithi

Court: High Court at Kabarnet

Parties: Republic v Gilbert Kipkorir Koech

Citation: Republic V Gilbert Kipkorir Koech [2017] eKLR

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Kefa Omina Alela V Republic [2017] eKLR

Case Number: Criminal Appeal 140 of 2015 Date Delivered: 20 Apr 2017

Judge: Thripsisa Wanjiku Cherere

Court: High Court at Kisumu

Parties: Kefa Omina Alela v Republic

Citation: Kefa Omina Alela V Republic [2017] eKLR

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Joseph Kivuva Kitheka V Republic [2017] eKLR

Case Number: Criminal Appeal 24 of 2017 Date Delivered: 20 Apr 2017

Judge: Mutungi Charles Kariuki

Court: High Court at Makueni

Parties: Joseph Kivuva Kitheka v Republic

Citation: Joseph Kivuva Kitheka V Republic [2017] eKLR

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M K V Republic [2017] eKLR

Case Number: Criminal Appeal 50 of 2016 Date Delivered: 20 Apr 2017

Judge: Jacqueline Kamau

Court: High Court at Voi

Parties: M K v Republic

Citation: M K V Republic [2017] eKLR

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M H A V Republic [2017] eKLR

Case Number: Criminal Revision Case 9 of 2016 Date Delivered: 20 Apr 2017

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: M H A v Republic

Citation: M H A V Republic [2017] eKLR

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Republic V Wiliam Chacha Magise [2017] eKLR

Case Number: Criminal Case 26 of 2014 Date Delivered: 20 Apr 2017

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Republic v Wiliam Chacha Magise

Citation: Republic V Wiliam Chacha Magise [2017] eKLR

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Republic V Mary Akinyi Ngesa & Another [2017] eKLR

Case Number: Criminal Case 74 of 2014 Date Delivered: 20 Apr 2017

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Republic v Mary Akinyi Ngesa & Stephen Odhiambo Obonyo

Citation: Republic V Mary Akinyi Ngesa & Another [2017] eKLR

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Jonah Ole Thomas V Republic [2017] eKLR

Case Number: Criminal Revision 290 of 2015 Date Delivered: 20 Apr 2017

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jonah Ole Thomas v Republic

Citation: Jonah Ole Thomas V Republic [2017] eKLR

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Safari Mathenge Mwangi V Republic [2017] eKLR

Case Number: Criminal Appeal 40 of 2015 Date Delivered: 20 Apr 2017

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Safari Mathenge Mwangi v Republic

Citation: Safari Mathenge Mwangi V Republic [2017] eKLR

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Loree Naperit V Republic [2017] eKLR

Case Number: Criminal Appeal 18 of 2016 Date Delivered: 19 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Marsabit

Parties: Loree Naperit v Republic

Citation: Loree Naperit V Republic [2017] eKLR

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Republic V Melita Ole Kaipon [2017] eKLR

Case Number: Criminal Case 17 of 2016 Date Delivered: 19 Apr 2017

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Republic v Melita Ole Kaipon

Citation: Republic V Melita Ole Kaipon [2017] eKLR

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