JUDGMENT
December 6, 1989, Nyarangi, Gicheru and Kwach, JJA, delivered the following judgment.
There is before us an appeal from the judgment of the Commissioner of Assize. Behan delivered on 17th June, 1988 dismissing the appellant’s appeal against conviction and sentence.
The appeal before us is based on the five grounds of appeal the substance of which is that the appeal was heard in the appellant’s absence notwithstanding that he wished to be present.
There is a matter touching on section 359(1) of the Criminal Procedure Code which goes to the root of the appeal. Shields, J acting on a direction by the justice directed that this appeal be heard by two judges. However, on 1May 11, 1988 Mbogholi, J and Commissioner of Assize Behand, purported to vacate the order of Shields, J and as a consequence the appeal was heard by the Commissioner of Assize. With utmost respect, the subsequent direction was an error of law. The two did not have the authority of the chief justice in writing to dire…