Description

Criminal Litigation

QUESTION ONE

Mairungi was charged with the offence of incest before Lumbani Chief Magistrate’s Court. Hewas accused of defiling his 9-yeär old niece JMM. During the trial, his sister Anna, JNW1*s mother was the first to testify. the court took JMM%’s evidexe. It transpired that JMM suffered from a mental disorder with impaired speech. The trial court nonetheless took her through her mother Anna who appeared to have a way to communicate with her.

JMM testified that she was alone. at home when the crime was committed. She informed her. mother three days later. A doctor confirmed that she had indeed been defiled and had contracted an unspecified infection.

Mairungi was placed on his defence and he said was that he did not commit the alleged offence. He was in custody and unrepresented. The court delivered judgement and conVicted him.. .After mitigation where he maintained his innocence, he was sentenced to life imprisonment and sent to Miti Maximum Prison.

At Miti, he meets Fundi Jela, a fellow convict and veteran. He narrates his case. Mairungi insists he was awayin Isíolo on business on the alleged date of the offence. He spent the night at Bornen Hotel and has found his receipt. He claims he was framed by his sister So as to be disinherited from their parent’s vast estate. Anna could not have spoken to•MM. SIMM has never spoken in her life. Mairungi is referred to you to the judgemene He.wåñts to testify on the basis of the new evidence.

• Advise him on the possible grounds of appeal and his options, (5 marks)

• Citing relevant provisions of Law, elaborate JWå’s competency as a witness, and the legat process on the use of an intermediary when taking evidence. (5 marks) (c) Discuss the process before the High Court when taking additional evidence. (5 marks)

(d) The judgementwas delivered by theHon. S.M. Kazi, C.Mi on 4^th December 2018, Draw the draft appeal document. (5 marks)