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…The prosecution offered absolutely no explanation as to why they kept the appellant in custody for that long period and what they had been doing with her.…

…– they ie the prosecution, must prove that the length of the period for which the accused was in their custody had no effect on his making the statement.…

…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.…

…His argument before that Court was that the entire prosecution case against him was dependent on the alleged evidence of identification.…

…Without its consideration and findings made on it, the issue of the appellant’s correct identification remained unresolved, since that defence conflicted with the prosecution case in that connection.…

…The trial Magistrate and the Judge erred in failing to hold that the prosecution had failed to dislodge the appellant’s cross-examination by the prosecution.…

…On the 4th October 1985, shortly before the prosecution put its show on the road, Mr Sereje who appeared for the defence before the trial Magistrate and before us gave the prosecution notice that the appellant’s case was…

…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.…

…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 Court took the view that the prosecution’s failure to call those two suspects as witnesses raised the inevitable presumption that had they been called they would have given evidence unfavourable to the prosecution’s case…

…This raised the inevitable presumption that witnesses if called would have given unfavourable evidence against the prosecution. This failure on the part of the prosecution was fatal to the conviction.…

…There are, however, other aspects of the case for the prosecution which we must consider.…

…Inspector David Wangombe who investigated the murder also gave evidence for the prosecution which has some unusual features.…

…The prosecution case was dependent on the evidence of PW1.…

…In the result, I am persuaded that the prosecution has proved its case beyond reasonable doubt that the accused beat the deceased for 20 minutes.…

…The case for the prosecution was that the complainant Philomena Wambui (PW 1) was travelling home in a matatu when the appellant snatched her handbag, wrist-watch and Kshs 2,150 cash.…

…The learned trial magistrate found the evidence of PW 1 and PW 2 truthful and found that the prosecution had proved its case to the degree required. He accordingly convicted the appellant as charged.…

…The learned Judge sat with three assessors and he heard all the eleven witnesses called by the prosecution in support of its case. After listening to the submissions of the appellant’s then advocate Mr.…

…No summing-up notes were available on the record and the incoming Judge deprived the appellant and of course himself of the opinion of the two assessors who had at least seen and heard the prosecution witnesses and the appellant…

…B.Ombewa) found that the prosecution had provided its case with sufficient and reliable evidence to convict the appellant with the offence of defilement.…

…which evidence did not prove the prosecution’s case beyond reasonable grounds; and in upholding a sentence which was excessive.…

…The trial magistrate after outlining the evidence of the prosecution witness as stated that he believed their evidence but gave no reason for believing it apart from saying that they had nor reason for lying.…

…It was after the trial magistrate had considered and decided on the prosecution evidence, that he rejected the defences as false, again without giving any reasons.…

…In his grounds of appeal to the High court the appellant complained that the prosecution evidence against him was fabricated lies and unreliable.…

…The key prosecution witnesses were Richard Ng’eno (PW 1) and Peter Munyao (PW 2). Richard was supposed to be the one who saw the appellant lock himself in the toilet and then he called Peter.…

…That charge, he alleges, arose in the performance of his duties as an advocate and according to him, before the prosecution could be started by the Attorney-General section 80 of the Advocates Act should have been complied…

…The proviso to that section is to the effect that no prosecution for an offence under that section shall be instituted unless a report has been made to the Attorney – General by the Disciplinary Committee created under the…

…Mr Prinja, in arguing grounds 5 and 6 of his appeal, alleged that the judge had considered the cases of the prosecution and of the defence in isolation to each other and had first accepted the evidence adduced by the prosecution…

…The learned judge set out the case for both the prosecution and the defence in some detail.…

…The prosecution case accepted by the two lower courts was that the house of Sister Wafula, a matron at Mr Elgon Hospital at Kitale was broken into on November 20, 1981, and six table chairs, two small tables, a fire place…

…The second accused’s evidence supported the prosecution’s case in a material respect. It undermined the appellant’s defence.…

…when but the appellant formed the opinion that his collegues had schemed against him and that consequently a crime had been committed so in 1986 the appellant went before the Chief Magistrate for permission for private prosecution…

…In the instant case, the appellant was pursuing a right to file a private prosecution. Only the Attorney-General has the right under section 26 of the Constitution to institute criminal proceedings.…

…Nonetheless, counsel for the respondent submitted that the intended appeal will only delay the prosecution of H.C.C.C.…

…Whether or not such an appeal will turn on a serious issue or it will only serve to delay the prosecution of the suit in the superior court is not possible to say with any amount of firmness as there is insufficient material…