Joseph Raymond Otieno Masime, Fred Kwasi Apaloo, Harold Grant Platt
Republic v Shem Angungo, Reuben Ouya, Saulo Migwanga, Gilbert Omino & 2 others
Republic thro’ Olum v Angungo & 5 others
Court of Appeal at Kisumu
June 23, 1988
Platt, Apaloo JJA & Masime Ag JA
Criminal Appeal No 168 of 1987
(Appeal from an Order of the High court at Kisumu, Omolo J)
Appeal – right of appeal - how such right conferred – whether such right may be implied where it is not expressly provided by statute – decision of the High court refusing to admit an appeal out of time – High court dismissing application in the absence of the applicant - whether an appeal can lie against such decision to the Court of Appeal – whether Court of Appeal having supervisory jurisdiction - Criminal Procedure Code (cap 75) section 361(8).
Statutes – Interpretation of statutes – Criminal Procedure Code (cap 75) section 361(8) – statute providing that certain decisions of the High court shall be final – High court making such decision without hearing one party – whether an appeal can lay against such decision – whether statute intended to deny right of appeal in such cases.
Natural justice - right to be heard - audi alteram partem - High Court dismissing application in the absence of applicant - statute law providing that such decision shall be final - whether the principles of natural justice violated - whether High Court’s decision appellable to the Court of Appeal- whether Court of Appeal having supervisory jurisdiction over the High Court.
The appellant applied to the High court to extend the time in which to file an appeal against the decision of a magistrate’s court dismissing his private prosecution case against the respondents.
The court fixed the hearing date for the application and wrote to the advocates for the parties to inform them. The appellant’s advocate’s letter was misaddressed, so that it did not reach the advocate and he did not attend the hearing. The application was therefore heard ex parte and dismissed.
The Criminal Procedure Code (cap 75) section 361(8) provided that a refusal by the High court to admit an appeal out of time under section 349 was final.
The appellant nevertheless appealed to the Court of Appeal. He argued that the section did not operate to bar an appeal where, like in his case, a party has been shut out from a hearing through no fault of his own. He argued that the order of the High court was ultra vires because it did not comply with the rule of natural justice audi alteram partem (hear the other side).
1. A right of appeal from one tribunal to another cannot arise unless such right has been conferred by statute.
2. The Court of Appeal enjoyed only that jurisdiction which was conferred on it by statute and it had no general supervisory role over the judicial process.
3. Not only was a right to appeal to the Court of Appeal in a case like the present one not conferred, but it was expressly barred by the Criminal Procedure Code (cap 75) section 361(8).
1. Magon v Ottoman Bank  EA 156
2. Craig v Kanseen  1 All ER 108; 1 KB 256
3. Mulindwa, Yusufu v R (1950) 17 EACA 131
4. Nyakinyua & Kang’ei Farmers Co Ltd v Kariuki & Gathecha Resources Ltd (No 2)  KLR 110
5. Kabulu v R (No 2)  KLR 220
6. Wamburu v R (1953) 20 EACA 339
7. Ngua v R  KLR 539
8. Kariuki & Another v R  KLR 76
9. Wasike v Wamboko  KLR 429
10. Anarita Karimi Njeru v R (No 2)  KLR 162
11. Re Racal Communications  AC 374;  2 All ER 634
12. R v Nealon (1950) 17 EACA 120
13. Ralph v R  EA 310
14. Mudavadi v R
15. Munene v R  KLR 105
16. Cozens v North Devon Hospital Management Committee & another
 All ER 799
Wade, HWR (1971) Administrative Law Oxford:Clarendon Press 3rd Edn
1. Criminal Procedure Code (cap 75) sections 202, 347, 347(1), 361,
361(1), 361(8), 349, 379(3)
2. Civil Procedure Rules (cap 21 Sub Leg) order IX rule 10
3. Civil Procedure Act (cap 21) section 67(2)
4. Court of Appeal Rules (cap 9 Sub Leg ) rule 32(2)
5. Constitution of Kenya section 64(1)
6. Appellate Jurisdiction Act (cap 9) section 3(1)
Mr. O Opiyo for the appellant
Mr. Gumba-Onywera for the Respondents