1.To consider the merit of the judgment giving rise to the conviction of John Mogesi Wangwi (the appellant) is to give credence to an audacious act of dishonesty on his part.
2.The appellant was arraigned before the Senior Principal Magistrate Court at Migori on the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars were that on April 28, 2004, at Igesa sub-location within Kuria District of the then Nyanza Province, jointly with others not before court, he robbed Joseph Marwa Irigo cash Kshs. 1,700, two hens and a pair of slippers all valued at Kshs. 2,170 and at or immediately before or immediately after the robbery wounded the said Joseph Marwa Irigo.
3.The appellant was tried and convicted in a judgment read and delivered on May 3, 2005,and was sentenced to death. Dissatisfied with the conviction and sentence, he appealed against the judgment in Kisii High Court Criminal Appeal No. 89 of 2010. The appeal was heard by the High Court ( Sitati , Lagat Korir JJ) and in a judgment delivered on February 13, 2013 dismissed for lack of merit. That decision has not been appealed against and is not the subject of this appeal.
4.Patently dishonestly, the appellant then preferred another appeal against the judgement of the trial court being Kisii High Court Criminal Appeal No. 94 of 2010 which was transferred to Migori High Court and assigned Criminal Appeal No. 36 of 2014. That dishonesty did not escape the vigilant eye of Hon. Majanja, J and in a short four paragraph judgment delivered on July 22, 2015, the learned Judge held;
5.The pattern of dishonesty by the appellant is now with us. In the notice of appeal that gave rise to the appeal before us, the appellant purported to appeal against the decision in Migori Criminal Appeal No. 36 of 2014 but misleadingly attributes that decision to the High Court at Kisii (Hon. Sitati and Lagat-Korir JJ.). In his submissions to us, learned Counsel Mr. Ogeto for the appellant, is emphatic that the appeal is against the decision of Hon. Majanja J dated July 22, 2015 but makes no mention of the striking out order and proceeds to argue an appeal not against the striking out but the merit of the decision of the trial court. Such travesty!
6.The objective of this disingenuous attempt to mislead us is all too clear. The appellant simply did not appeal against the decision of the first appellate court which heard his appeal on merit. Instead, he chose to proceed with another appeal lodged before the High Court during the pendency of another appeal before the same court, which was correctly and promptly struck out by Hon. Majanja, J. Knowing full well that he could not fault the striking out decision, the appellant purported to come before us on an appeal questioning the merit of the decision of the trial court. The appellant would have been well aware that there was no proper appeal before us against the decision of Sitati and Lagat Korir JJ.
7.We need say no more. There is no proper appeal before us and the purported appeal is hereby struck out.