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…out of time in an intended appeal from a Judgment of the High Court of Kenya at Mombasa (Mr Justice Shields ) dated 31st August, 1990 in HCCC No 934 of 1979) Civil Practice and Procedure – dismissal of suit for want of prosecution…

…– whether court has power to set aside order dismissing suit for want of prosecution – order XVI rule 6 Civil Procedure Rules.…

…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.…

…Firstly, on the basis of the charge being defective, yet neither the prosecution nor the court amended it.…

…Masila, Prosecution Counsel, relied on the grounds of opposition filed by the DPP’s Office.…

…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.…

…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…

…O XV1 deals with the prosecution of suits and adjournments. O XV1 rule 4, is instructive. On 9th May, 1989, the suit came for trial. An application for adjournment was made on behalf of the plaintiff, and, was granted.…

…The Shorter Oxford English Dictionary (Vol II) offers several definitions of ‘suit’, one of which is: “pursuit, prosecution, legal process.”…

…This Court has, in several cases dealing with customary law in criminal cases, decided that where the prosecution relies on a local custom then that local custom must be proved by witnesses called by the prosecution, and…