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Criminal Case 41 of 2011 -- Kenyan case law.
Course: criminal law (GPR 106)
381 Documents
Students shared 381 documents in this course
University: University of Nairobi
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Republic v Galma Abagaro Shano [2017] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NUMBER 41 OF 2011
REPUBLIC …………………..PROSECUTOR
VERSUS
GALMA ABAGARO SHANO……ACCUSED
RULING
Mr. Galma Abagaro Shano, hereinafter “the accused” was charged with murder contrary to Section 203
as read with Section 204 of the Penal Code. The particulars of the offence are that on the 5th day of May
2011 at Gatina Village in Kawangware in Nairobi within Nairobi County he murdered Mohamed Halkano
Duba. The accused pleaded not guilty to the charge. The case proceeded to full trial. The prosecution
called a total of eleven (11) witnesses in support of the case against the accused. The evidence for the
prosecution was that the accused stabbed the deceased who was his neighbour at Gatina Village. The
accused died while undergoing treatment at Kenyatta National Hospital.
After the prosecution closed its case, this court analysed all the evidence tendered in court. It made a
finding that the accused person had a case to answer and in its ruling delivered on 1st July 2015 the
court placed him on his defence. The accused, through his defence counsel Mr. Omari, informed the
court that he would testify under oath and would not call any witness. The court fixed the hearing date for
defence case as 16th July 2015. On that day Mr. Omari was not in court. He had sent Mr. Mogaka to hold
his brief. The case was adjourned to 14th October 2015. On the scheduled date, the accused did not turn
up in court. His counsel Mr. Omari was also not present. His brief was being held by Mr. Mokua who
informed the court that Mr. Omari was trying to locate his client the accused and would be attending
court later that morning. When Mr. Omari arrived in court he informed the court that his client had
travelled to Moyale and thereafter to Mandera and that information received from the relatives of the
accused indicated that accused had fallen ill and was unable to travel to Nairobi to attend the hearing.
The matter was adjourned to 10th November 2011 for mention for purposes of confirming attendance of
the accused or his whereabouts. From that date to date, the accused has been at large. Attempts by the
Investigating Officer to track the accused down have been unsuccessful. The execution of the warrant of
arrest issued by this court on 10th November 2015 has not been carried out.
It is against that background that the Office of the Director of Public Prosecutions has brought this
application. The application has come by way of submissions which submissions are based on the
affidavit sworn by Senior Sergeant John Rotich on 1st March 2017. The affidavit narrates the
unsuccessful efforts the officer has put in trying to track down the accused and execute the warrant of
arrest. The prosecution is asking this court to proceed with the hearing of this case as if the accused
were present in court. The prosecutor is asking the court further to find that the accused has waived his
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