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Bid to block Delamere son's
appeal flops
Daily Nation
Story by JILLO KADIDA
Publication Date: 2/27/2008
A bid by the prosecution to have an appeal by Lord Delamere’s
grandson Tom Cholmondeley dismissed has failed.
This follows a decision by Court of Appeal judges Riaga Omollo,
Emmanuel O’kubasu and Onyango Otieno to dismiss an application
brought by director of Public Prosecutions Keriako Tobiko.
Mr Cholmondeley, who is accused of murdering Gilgil stonemanson
Robert Njoya, is contesting an order by the High Court requiring
him to supply the prosecution with statements and particulars of
his witnesses in the murder case.
Yesterday, the DPP said the appeal by Mr Cholmondeley was
incompetent and, therefore, ought to be dismissed.
Secondly, he said, the Court of Appeal did not have the
jurisdiction to handle the appeal.
Not been convicted
Mr Tobiko said the jurisdiction of the Court of Appeal was
exclusively derived from section 379 of the Criminal Procedure
Code. And for it to use the powers provided for under this section,
he said, there must be a conviction. In the present case, Mr
Tobiko said, the accused had not been convicted.
He told the appellate judges that High Court judge Muga Apondi was
right in ordering Mr Cholmondeley to supply witness statements to
the State.
Mr Cholmondeley’s lawyer, Mr Fred Ojiambo, said the High Court
order denied his client the right to a fair trial.
In a Memorandum of Appeal he has filed, Mr Cholmondeley also
claims that the judge made the orders without jurisdiction and
without hearing his side.
By doing this, Mr Cholmondeley said, the lower court had violated
his “right to reserved trial”. He has denied the murder charge,
but Mr Justice Apondi has since put him on his defence, after
finding that he had a case to answer.
Mr Cholmondeley told the court that he would give an unsworn
statement and, at the same time, call seven witnesses to defend
him.
It was then that Mr Tobiko applied that he be supplied with
statements and other particulars of the defence witnesses to be
called.
His appeal will now be heard on a date to be taken from the
registry by parties on a priority basis.
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