|Criminal Appeal 107 of 1995
|Philip Munyao Mbuvi v Republic
|15 Jan 1996
|Court of Appeal at Mombasa
|Amrittal Bhagwanji Shah, Richard Otieno Kwach, Abdul Majid Cockar
|Philip Munyao Mbuvi v Republic  eKLR
|(Appeal from a judgment of the High Court of Kenya at Mombasa (Wambilyangah, J.) dated 21st February, 1994 IN H.C.CR. A. NO. 12 OF 1991)
|History Docket No:
|12 of 1991
|Isaac Charles Cheskaki Wambilyangah
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
(CORAM: COCKAR, C.J., KWACH & SHAH, JJ.A.)
CRIMINAL APPEAL NO. 107 OF 1995
PHILIP MUNYAO MBUVI………………APPELLANT
(Appeal from a judgment of the High Court of Kenya at Mombasa (Wambilyangah, J.) dated 21st February, 1994
H.C.CR. A. NO. 12 OF 1991)
JUDGMENT OF THE COURT
The appellant was originally charged with the offence of murder contrary to section 203 of the Penal Code as read with section 204 of the Penal Code.
On 2nd October, 1991 the appellant pleaded not guilty to the charge of murder. The charge was then reduced to manslaughter. It appears that the prosecution accepted a plea to manslaughter contrary to section 205 of the Penal Code, that is that he unlawfully killed the deceased.
It is clear therefore that at the time the appellant pleaded not guilty to the charge of manslaughter, he was no more facing the charge of murder.
However subsequently the trial proceeded on the assumption that he was charged with the offence of murder as is clear from the very first sentence of the judgment of the learned judge in the superior court. Even the summing up by the learned judge was on the basis of murder whilst the appellant was still charged with the offence of manslaughter.
The trial therefore is a nullity. The other aspect of the trial with which we are concerned is that one of the assessors did not sit during the course of the trial, on one day. He was subsequently allowed to return and sit. This is not proper and this aspect also renders the trial a nullity.
In the normal circumstances we would have ordered a retrial but having regard to the fact that the appellant has been in custody for about six years we think the ends of justice will be met by ordering immediate release of the appellant unless he is otherwise held in lawful custody. It is so ordered and the conviction is quashed and the sentence is set aside.
Dated and delivered at Mombasa this 15th day of January, 1996.
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is true copy of the original.