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…EXECUTOR/RESPONDENT R U L I N G Although in this summons dated 19th September 2002 the Respondent, Frasia Wanjiku Kariuki, was served and has failed to come up to oppose the application requiring rectification or amendment…

…On December 1, 1986 notice was filed of amendment of petition of appeal.…

…The effect of the notice of amendment was that the appellant amended his earlier petition of appeal by abandoning the grounds of appeal contained in it and replacing them with the grounds of appeal contained in the amended…

…An amendment permitted by the court was to the effect that the alternative prayer was brought under Order 44, rule 1 of the Civil Procedure Rules (the Rules).…

…Rao squarely relies in section 361 97) of the Code as the legal basis for the appeal before us and in support of his contention that the appeal lies to us, he referred us to the Criminal Procedure (Amendment) Bill, 1959 which…

…became the Criminal Procedure (Amendment) Ordinance 1959 which introduced section 361 (7) of the Code.…

…The application dated 29/12/1999 seeks mainly for the amendment of Forms P&A 5 filed herein to include parcel number Kabete/Lower Kambete/885 or the resultant Subdivided parcels and parcel, number T.177 lower Kabete.…

…And sub-section 3 of this section provides that: “The charge framed by the magistrate under subsection (2) may be in the same terms as the information furnished by the prosecution or may be an amendment thereof.”…

…In this regard, Mr Kariuki and Dr Khaminwa argued that the word framed requires the magistrate to write out a charge which could be in the same words as the one in the information or an amendment thereof.…

…This was long before the recent amendment to the Constitution. In the case of the 1st accused the officer who took the statement at Nyeri was Chief Inspector Githitho.…