[2022] KEHC 10616 (KLR)
The High Court found that despite repeated requests, the lower court file for Bondo PM Cr. Case No. 831/2019 could not be traced, and there was no record of the appellant's conviction under the cited case number. Without the trial court record, the appellate court is unable to admit or determine the appeal, as it...
Source-derived case information.
- Citation
- [2022] KEHC 10616 (KLR)
- Parties
- Appellant: Erick Omondi Aweyo Alias Ojwang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1` of 2020
- Procedural Posture
- Criminal Appeal / Ruling on Admission/competency of Appeal
- Outcome
- appeal struck out for incompetency and want of proper particulars
- Judges
- RE Aburili
- Legal Topics
- Appeal Admission, Missing Trial Record, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Omondi Aweyo Alias Ojwang
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Admission/competency of Appeal
Legal Issues
- 1 Whether the appeal can proceed in the absence of the lower court's trial record.
- 2 Whether the appeal is competent without proper particulars of the lower court file.
Ratio Decidendi
The High Court found that despite repeated requests, the lower court file for Bondo PM Cr. Case No. 831/2019 could not be traced, and there was no record of the appellant's conviction under the cited case number. Without the trial court record, the appellate court is unable to admit or determine the appeal, as it cannot review the proceedings or judgment of the lower court. The absence of proper particulars renders the appeal incompetent. Consequently, the court struck out the appeal for want of proper particulars and incompetency, but granted the appellant liberty to file a fresh appeal if proper procedures are followed and the necessary records are availed.
Court Disposition
appeal struck out for incompetency and want of proper particulars
Orders
- The appeal is struck out for being incompetent and for want of proper particulars.
- The appellant to be notified in prison.
Full Case Text
Judgment text and source record
22 paragraphs
Aweyo v Republic (Criminal Appeal 1` of 2020) [2022] KEHC 10616 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10616 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Appeal 1` of 2020
RE Aburili, J
June 16, 2022
Between
Erick Omondi Aweyo Alias Ojwang
Appellant
and
Republic
Respondent
Ruling
1. This appeal was filed on 15/1/2020 by Eric Omondi Aweyo Ojwang. He cited Bondo PM Cr. Case No. 831/2019 as the trial court case file. This court did call for the trial court file immediately on 16/1/2020 and has since send 4 reminders for the lower court file to be submitted to this court for admission of the appeal to hearing without receiving any response from Bondo Principal Magistrate’s court.
2. On 13/6/2022 during the High Court’s station supervisory visit, again this court asked the Principal Magistrate’s court at Bondo to avail the trial court record but when the staff searched in their registry, they were unable to find any file No. Cr. 831/2019 in the name of the appellant herein who claims that he was convicted for the offence of stock theft and sentenced to serve seven 7 years imprisonment on 6/1/2020.
3. As the lower court is unable to trace particulars of the appellant’s case file, the only option for this court now is to close this file.
4. Accordingly, this appeal which has been pending before this court for over 2 years without proper particulars of the lower court file is hereby struck out for being incompetent and for want of proper particulars.
5. The Appellant to be notified in prison. He is at liberty to file a fresh appeal following the legal procedures available.
6. Orders accordingly,
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 16TH DAY OF JUNE, 2022R.E. ABURILIJUDGE