C M W v Republic [2017] KEHC 3559 (KLR)
- Citation
- [2017] KEHC 3559 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Appeal 19 of 2015
- Language
- English
More details
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Appeal 19 of 2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that since the appellant's conviction had already been set aside by the Nyeri High Court in Criminal Appeal Number 111 of 2011, maintaining or hearing Criminal Appeal Number 19 of 2015 would result in the appellant being heard twice on the same matter. This would be procedurally improper and contrary to the principles of finality in litigation. Therefore, the appeal was struck out to prevent duplication and uphold the integrity of the judicial process.
Court disposition
appeal struck out
Orders
- Nanyuki Criminal Appeal Number 19 of 2015 is struck out.
- The file is to be closed.
- Deputy Registrar to have proceedings typed and supplied to the Office of the Director of Public Prosecutions.
02
Material facts
Parties
C M W
AppellantRepublic
Respondent03
Procedural history
Posture
Criminal Appeal / Striking Out of Appeal Due to Prior Determination
04
Questions and positions
Legal issues
- 01
Whether the appeal can be maintained after the conviction was already set aside in a previous appeal.
- 02
Whether hearing the same appeal twice would amount to double jeopardy or procedural impropriety.
Party arguments
- Applicant
- The appellant did not present arguments in this instance as the matter was considered in chambers and the prior appeal had already been determined.
- Respondent
- The respondent did not present arguments as the court acted suo motu upon discovering the prior determination of the appeal.
05
Court’s reasoning
Legal principles
- 01
Doctrine of res judicata; general criminal procedure principles
An appeal cannot be heard twice on the same conviction once a competent court has already set aside the conviction.
- 02
Criminal Procedure Code; judicial practice
It is improper and procedurally irregular to maintain parallel or duplicate appeals on the same matter.
06
Ratio, limits and disposition
Ratio decidendi
The court found that since the appellant's conviction had already been set aside by the Nyeri High Court in Criminal Appeal Number 111 of 2011, maintaining or hearing Criminal Appeal Number 19 of 2015 would result in the appellant being heard twice on the same matter. This would be procedurally improper and contrary to the principles of finality in litigation. Therefore, the appeal was struck out to prevent duplication and uphold the integrity of the judicial process.
Obiter and limits
- The Deputy Registrar is directed to have the proceedings typed and supplied to the Office of the Director of Public Prosecutions.
Court disposition
appeal struck out
- Nanyuki Criminal Appeal Number 19 of 2015 is struck out.
- The file is to be closed.
- Deputy Registrar to have proceedings typed and supplied to the Office of the Director of Public Prosecutions.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL 19 OF 2015
C M W ………………………......................………… APPELLANT
VS
REPUBLIC…………………………….………….. RESPONDENT
18/9/2017
Before Justice Mary Kasango
Court assistant; Njue/Mariastella
Court in chamber in absence of parties;
The appellant C M W was charged and convicted before the Nanyuki Senior Principal Magistrates Court in Criminal Case Number 329 of 2010 for the offence of incest contrary to section 20(1) of the Sexual Offences Act. He filed two appeals against that conviction before Nyeri High Court. Those Appeals were Criminal Appeal Number 111of2011 and Criminal Appeal Number 116of2011. Nyeri High court by the Judgment of 18th March 2016 set aside his conviction in Criminal Appeal Number 111 of 2011. Unaware of that appeal Nyeri High court transferred its Criminal Appeal Number 116 of 2011 to this court which in turn was given case number Nanyuki Criminal Appeal Number 19 of 2015.
That in Criminal Appeal Number 19 of 2015 cannot be allowed to remain on record because it would be tantamount to hearing appellants appeal twice.
It is for that reason that I hereby strike out Nanyuki Criminal Appeal Number 19 of 2015. I order that file be closed. I request Deputy Registrar to have these proceedings typed and be supplied to office of director of public prosecutions.
DATED AT NANYUKI THIS 18TH DAY OF SEPTEMBER 2017.
MARY KASANGO
JUDGE
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