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|Case Number:||Criminal Appeal 22 of 2010|
|Parties:||REPUBLIC v CHARLES ODEP ATHIAMBO|
|Date Delivered:||26 Nov 2010|
|Court:||High Court at Kisumu|
|Citation:||REPUBLIC v CHARLES ODEP ATHIAMBO  eKLR|
|Case History:||(Appeal from the Senior Resident Magistrate’s Court Nyando in CR. CASE NO. 522 OF 2008)|
|Case Outcome:||Appeal Allowed|
IN THE HIGH COURT OF KENYA
1. That the learned trial magistrate erred in law in acquitting the respondent.
In her submission learned State Counsel Miss Mary Oundo submitted that there was enough evidence at the stage upon which the court acquitted the respondent to have placed the respondent (accused) on his defence.
From the evidence on record 3 prosecution witnesses testified. The complainant, a village elder present at the time of the alleged assault and a medical officer who confirmed injuries. PW1 & PW3 stated that the names referred to of Kuona Odeko are an alias used to refer to the accused. It therefore appears that there was no confusion in the names. The respondent was referred to by his names and nick name. In the premises the issue of confusion in the names does not arise. Secondly, the argument by the respondent’s Counsel that the Investigating Officer was to confirm names does not hold water. An investigating officer relies on witnesses to establish whether a crime was committed or not. There is evidence of assault and at the stage the case reached fingers were being pointed at the respondent. This court is of the view that a prima facie case had been established to have had the respondent placed on his defence. In the circumstances therefore the appeal succeeds. The case is remitted back to Nyando for hearing to begin a fresh before a different magistrate.