Omundi v Republic (Criminal Appeal 327 of 2018) [2023] KECA 1557 (KLR) (19 December 2023) (Judgment)
- Court
- Court of Appeal
- Case number
- 1557
- Citation
- [2023] KECA 1557 (KLR)
- Decided
- 19 December 2023
The judgment of the first appellate court is set aside, and the appeal is remanded back to the High Court for accelerated hearing and disposal by a High Court Judge other than C.B. Nagillah, J.
Facts
The appellant, Edwin Osoro Omundi, was charged with delement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act. He pleaded not guilty and the prosecution called five witnesses to prove its case.
Issues
- Was there penetration into the complainant's vagina?
Reasoning
The first appellate court failed to re-evaluate the evidence as required by law, and the judgment was a nullity. The court agreed with the respondent that the proper recourse is to remand the appeal for a re-hearing by a judge other than the one who heard it in the first place.
Outcome
Appeal succeeds to the limited extent of remanding the case to the High Court.
Orders
- Remand the appeal back to the High Court for accelerated hearing and disposal by a High Court Judge other than C.B. Nagillah, J.
- Set aside the judgment dated 28th April, 2017 of C.B. Nagillah, J.
Remedies
- Remand the appeal back to the High Court for accelerated hearing and disposal by a High Court Judge other than C.B. Nagillah, J.
Authorities cited
Legislation (2)
- Sexual Offences Act
- Criminal Procedure Act
Cases cited (5)
- Okeno v Republic (1972) EA 32
- Pandya v. R (1957) EA 336
- Ruwala v. R (1957) EA 570
- Samuel Warui Karimi v. Republic (2016) eKLR
- Hezron Rioba Achiki v R (Court of Appeal at Kisumu Crim. App. No. 155 of 2017)
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