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|Case Number:||Criminal Appeal 248 of 1994|
|Parties:||Isaya Opiyo Odida v Republic|
|Date Delivered:||15 Feb 1995|
|Court:||High Court at Kisii|
|Citation:||Isaya Opiyo Odida v Republic eKLR|
|Parties Profile:||Individual v Government|
Isaya Opiyo Odida v Republic
High Court, at Kisii
February 15, 1995
Criminal No 248 of 1994
Criminal Practice and Procedure - judgment - contents and mode of delivery - where one is convicted without any written judgment r pronouncing the same accordance with the law - whether this is procedure as per the law.
Summary of the Facts
The appellant was convicted in the court below of theft c/s. 275 of the Penal Code and was sentenced to 2 years of imprisonment. His appeal to this court is against conviction and sentence.. He contended that the magistrate erred in convicting him and sentencing him without writing any judgment or pronouncing the same according to the law.
The learned state counsel agreed that there were irregularities during the trial in the court below.
|Case Outcome:||Appeal Allowed|
|Disclaimer:||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|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL NO 248 OF 1994
ISAYA OPIYO ODIDA……......……….APPELLANT
The appellant was convicted in the court below of theft c/s. 275 of the Penal Code and was sentenced to 2 years of imprisonment. His appeal to this court is against conviction and sentence.
In ground 4, which is the only ground that was argued, the appellant complains that the learned trial magistrate erred in law in convicting and sentencing him to 2 years imprisonment without writing (any) judgement or pronouncing the same in accordance with the law. That, Mr. Ochillo, who argued the appeal for the appellant, submitted contravened the provisions of Ss. 168 and 169 of the Criminal Procedure Code which said sections make provisions for the contents and mode of delivering judgments.
On the face of it, the record of the court below as submitted by the lower court to the court appears to be proper and in accordance with the law in that after the close of the defence case on 24.8.94 the learned trial magistrate made an order to the effect that judgment would be delivered the same day the 24.8.94 at noon. There then follows a 4 page typed judgment which is dated the same day at the end of which sentence as aforesaid, is passed.
But then Mr. Ochillo produced photocopies of the learned trial magistrate’s notes (taken immediately after judgment and sentence) which clearly show that the sentence was passed before the judgment was written. The last page of the learned trial magistrate’s notes as contained in the photostat copy of the record shown to this court by Mr. Ochillo is so different from what appears in the record submitted by the lower court that their cannot be any doubt that the record particularly the part containing the judgment and sentence was doctored after the sentence had been passed. It is further clear that it was the learned trial magistrate himself who doctored the record. The handwriting is clearly his.
The learned trial magistrate’s conduct was a serious breach of the court’s procedures and a clear abuse of the powers conferred upon him. Learned State Counsel agree that there were irregularities during the trial at the court below.
The trial was clearly a nullity and the conviction should not be allowed to stand.
The appeal is allowed, conviction quashed and sentence set aside. In view of the fact that the appellant has already served about 6 months of the two years sentence imposed upon him by the learned trial magistrate, an order for retrial would not be appropriate. The appellant is to be set free forthwith unless he is otherwise lawfully held.
Dated and delivered at Kisii this 15th February, 1995