Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
DIGEST OF CASES FEATURED
Defence - defence of alibi-accused person raising defence of alibi-accused claiming that the complainants had a grudge
against him-viability of the defence-whether the defence was an afterthought
Republic v Peterson Karani Njogu ................................................................................................................................................... 73
Retrial - application for retrial-witnesses in the original trial having testified without being sworn in-prosecution having
proved its case against the appellant beyond reasonable doubt-circumstances under which a retrial would have been
ordered-whether a retrial would prejudice the appellant.
Charles Wanjohi Murage v Republic ............................................................................................................................................. 78
Trial - trial conducted by two magistrates in succession – right of an accused person to have the case start afresh in such
circumstances - accused person having asked the succeeding magistrate that the trial of the case should start afresh – request
having been denied – whether the trial court had misdirected itself – Criminal Procedure Coe (Cap. 75) section 200(3)
Joseph Mwangi v Republic ................................................................................................................................................................ 76
Witness - prosecution witness-prosecution failing to call the investigating officer as a witness in the trial-other witness
categorically placing the accused at the crime scene-circumstances under which the evidence of the investigating officer
would have been required-effect of failing to call the investigating officer-whether the lack of evidence left a gap in the
prosecution’s evidence
Republic v Peterson Karani Njogu ................................................................................................................................................... 73
Witnesses - witness testimony-manner in which witness testimony may be taken in court -record of the trial failing to
show whether the witnesses had been sworn or affirmed before their evidence was received-circumstances under which
witness could be allowed to testify without being sworn and or affirmed-first appellate court being in doubt as to whether
the witnesses had been sworn in-person in whose favor the doubt ought to have been resolved-whether the appellant had
been prejudiced by a conviction on unsworn evidence.
Charles Wanjohi Murage v Republic .............................................................................................................................................. 78
CUSTOMARY LAW – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased
father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial
of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life
time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on
burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the
deceased should be respected – Judicature Act (Cap 8)section 3 (2).
Charles Onyango Oduke & Another v Samuel Onindo Wambi ................................................................................................... 66
ELECTION LAW
Ballot boxes - scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes tampered
with in the period between the time the defunct Electoral Commission of Kenya (ECK) was disbanded and the constitution
of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted.
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63
Election petition - parliamentary election - petition seeking to nullify and declare void the election of the first respondent
as Member of Parliament for Makadara Constituency -irregularities in elections – petitioner citing several irregularities
in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National
Assembly and the Presidential Elections Act (Cap 7)
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ........................................................................ 58
Election petition - parliamentary election- election petition seeking to nullify and declare void the election of the first
respondent as Member of Parliament for Juja Constituency -irregularities in elections – petitioner citing several irregularities
in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National
Assembly and the Presidential Elections Act (Cap 7)
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63
Election petition - standard of proof in election petitions- burden of proof on the petitioner-standard of proof slightly
higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied by the
court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation of
fraud had been properly established-whether the required standard of proof had been established
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63
Issue 12: April-June 2010
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