Case Metadata |
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| Case Number: | Criminal Appeal 94 of 2007 |
|---|---|
| Parties: | ANASETI AMAI OPUTO v REPUBLIC |
| Date Delivered: | 16 Dec 2008 |
| Case Class: | Criminal |
| Court: | High Court at Bungoma |
| Case Action: | Judgment |
| Judge(s): | Amraphael Mbogholi-Msagha |
| Citation: | ANASETI AMAI OPUTO v REPUBLIC [2008] eKLR |
| Advocates: | Mrs Mumalasi for Onyando for the appellant. Mr. Onderi for the State |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Bungoma |
| Advocates: | Mrs Mumalasi for Onyando for the appellant. Mr. Onderi for the State |
| Case Summary: | Criminal practice and procedure-appeal-appeal against conviction and sentence-the appellant was convicted of grievous harm and sentenced to 3 years imprisonment-grounds of appeal that the trial magistrate erred in law and fact in convicting the appellant on the substituted charges without recalling the witnesses-retrial-whether a retrial should be ordered-whether the appeal had merit-Penal Code sections 234, 251 |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Accused acquitted |
| 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 BUNGOMA
Criminal Appeal 94 of 2007
ANASETI AMAI OPUTO.................................APPELLANT
~VRS~
REPUBLIC.....................................................RESPONDENT
JUDGMENT
The appellant Anaseti Amayi Oputo was originally charged with the offence of assault causing actual bodily harm c/s 251 of the Penal Code. He denied the offence. After one witness, a doctor, had given evidence the charge was substituted and the prosecution filed a charge of grievous harm c/s 234 of the Penal Code. This charge was then read to the appellant who denied the same. The hearing continued and subsequently the appellant was convicted of the offence of grievous harm and sentenced to 3 years imprisonment.
This appeal arises from the said conviction and sentence. The learned counsel for the appellant Mr. Onyando has submitted that the learned trial magistrate erred in law and fact in convicting the appellant on the substituted charge whereas the witness who had testified was never recalled to testify in the substituted charge.
There are other grounds of appeal raised by the learned counsel but which I shall not venture into in view of the conclusions I am just about to reach. When the prosecution decided to substitute the charge, it was clear that the new charge was under a different section of the Penal Code and attracts a different sentence from the first charge. When the new charge was read to the appellant and to which he pleaded not guilty, a new trial was opened. It is immaterial that the doctor had already testified. This being a new trial the prosecution ought to have recalled the doctor to give evidence so that the proceedings are regularized. As it is, the proceedings may not be termed irregular, but they are incomplete in the absence of the medical evidence for the charge which the appellant faced.
I have gone through the record, the evidence pointed to the appellant and the incompleteness notwithstanding, this is the case that calls for a retrial. This is to ensure that the ends of justice are met. Accordingly the conviction and sentence imposed upon the appellant is quashed and set aside and the order shall be that the appellant shall be subjected to a retrial on the charge of grievous harm c/s 234 of the Penal Code. This shall be done within 7 days of today and in the meantime he shall be held in police custody.
Signed, Dated and Delivered this 16th day of December, 2008.
A. MBOGHOLI MSAGHA
JUDGE
Mrs Mumalasi for Onyando for the appellant.
Mr. Onderi for the State.
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