Emmanuel Okello O'Kubasu, Philip Nyamu Waki, Erastus Mwaniki Githinji
Kinoti v Republic
Court of Appeal, at Nyeri November 5, 2004
O’Kubasu, Githinji & Waki JJ A
Criminal Appeal No 54 of 2004
(Appeal from the Ruling of the High Court of Kenya at Nyeri (Khamoni J) dated 2nd February, 2004 in HCCRA No 71 of 2002)
Criminal Practice and Procedure – appeal - summary dismissal of appeal – appeal from subordinate court to the High Court - where appeal is dismissed for want of prosecution – remedy available to the appellant – whether to appeal or to apply for setting aside of the dismissal order – whether an appeal falling under section 353 and 354 of the Criminal Procedure Code (cap 75) can be summarily dismissed – whether court obliged to consider the appeal and make a determination.
The appellant was convicted in a Senior Resident Magistrate’s Court on two counts of assault and sentenced to a fine. His appeal against the judgment was admitted to hearing on 12th May, 2003. On the first hearing date, the appeal was adjourned as there was no appearance for both the appellant and the State.
On the next hearing date, there was no appearance for the State and the hearing was adjourned again to February 2, 2004. On that date, the appellant’s advocate instructed a colleague to apply for an adjournment for the reason that she would not make it from Meru to the Court in Nyeri in time for the hearing. Khamoni J refused to grant an adjournment and dismissed the appeal for failure to prosecute it. The appellant filed this appeal against that order.
1. The course open to the appellant upon the dismissal of his appeal for want of prosecution was to take out a Memorandum of Appeal to the Court of Appeal because there are no provisions in the Criminal Procedure Code (cap 75) for setting aside such dismissal before the same court. Indeed, there is no provision for determination of an appeal that has been admitted to hearing without consideration by the court of the merits thereof.
2. The appellant’s appeal before the High Court was governed by section 353 and 354 of the Criminal Procedure Code. While section 353 which relates to the notice of time and place of hearing is couched in mandatory terms, there is no mandatory requirement in section 354, which relates to the powers of the High Court at the hearing of an appeal, that the appellant or his advocate or the State should address the Court.
3. It is nonetheless incumbent on the Court to consider the appeal and make a determination in accordance with section 354(3) of the Code.
4. The High Court had erred in dismissing the appeal summarily. Furthermore, the grounds upon which the appellant’s advocate had sought an adjournment were reasonable in the circumstances.
Appeal allowed, order dismissing appeal quashed, record remitted back to the High Court for hearing.
No cases referred to.
1. Penal Code (cap 63) sections 251, 259
2. Criminal Procedure Code (cap 75) sections 352(1); 353; 354(3)
Mrs Ntarangwi for the Appellant
Mr Orinda for the Respondent