JUDGMENT
The short point remaining for our consideration on this second appeal is whether the failure of the learned Senior Resident Magistrate at Nyeri, (Mr Ombonya), who took over the station from Mr Omondi-Tunya after the evidence of the complainant only had been given, to inform the appellant and his co-accused of their right to have that witness resummoned and reheard under section 200(3) of the Criminal Procedure Code, occasioned a failure of justice.
The charge was one of robbery contrary to section 296(1) Penal Code, committed in the house where the complainant and her children were asleep at about 2 am on the June 27 1983. The prosecution case depends on visual identification and recognition of the appellant by the complainant and David Gitau Muhia (PW 3), who was called after the succeeding magistrate resumed the trial. On the basis of his acceptance of the prosecution evidence, the magistrate rejected the evidence of the appellant and his co-accused, and of their respective w…