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…APPELLANT AND DIRECTOR OF PUBLIC PROSECUTIONS ....................................…

…After reviewing the prosecution evidence, the trial court put the appellant on his defence.…

…I suppose it is fair to say that, if the money was in dollars and the appellant was expected to exchange them on the black-market, it would be unlikely that the prosecution witnesses would say so.…

…There was some substance in the account of the appellant which was to be negatived by the prosecution. On the evidence available, the appellant always said that someone had taken the money.…

…The grounds of appeal are briefly that the judge erred in confirming the conviction when the RM in his judgment had evaluated the evidence for the prosecution in isolation and failed to consider the unsworn statement, also…

…Thus the judge accepted the prosecution’s case and proceeded to dismiss the appeal. That is worse than commission of the error of looking separately at the case for the prosecution and the case for defence.…

…The prosecution claimed that they had robbed one John Bwana Opundo of cash Kshs 6000. According to the prosecution, the complainant arrived from Bondo with a view to do some shopping in Kisumu. He has a shop there.…

…He held that the prosecution’s version of the matter was the side of truth and that the appellant and his confederates indeed robbed the complainant of his money.…

…This court is not unware of speculation circulating in the country and outside as to the likelihood of success of such a prosecution, but such speculation is totally irrelevant to these proceedings.…

…It is interesting to notice that in these application only one point of law has been argued to indicate that there is no likelihood of success of the prosecution, relating to the consent to prosecute.…

…In any case where an indictment contains substantive counts and a related conspiracy count, the judge should require the prosecution to justify the joinder, or failing justification, to elect whether to proceed on the substantive…

…The magistrate in that case had called upon the prosecution to justify or elect. That is the order that should have been made in this case.…

…We have already said that the prosecution did not justify the detention.…

…the accused is confused, or there has been inordinate delay in bringing the accused to Court from the date of arrest, then an examination of the circumstances must form an integral part of the facts to be stated by the prosecution…

…Upon a consideration of the evidence the trial magistrate believed the prosecution witnesses but not the evidence of the appellant or his witness or indeed the statutory statement of Makau Mulei and convicted the appellant…

…Mr Owour also submitted that the identification of the applicants was based on the evidence of only one witness and that other persons who might have given material evidence were not called by the prosecution but that Court…

…Their petitions of appeal, filed on the July 23, 1984, each contained lengthy grounds, but in particular attacked their respective identifications by the prosecution witnesses, upon which of course, their convictions mainly…