[2017] KEHC 3559 (KLR)
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...
Source-derived case information.
- Citation
- [2017] KEHC 3559 (KLR)
- Parties
- Appellant: C M W; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 19 of 2015
- Procedural Posture
- Criminal Appeal / Striking Out of Appeal Due to Prior Determination
- Outcome
- appeal struck out
- Judges
- MM Kasango
- Legal Topics
- Incest Offence, Sexual Offences Act, Double Jeopardy, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C M W
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Striking Out of Appeal Due to Prior Determination
Legal Issues
- 1 Whether the appeal can be maintained after the conviction was already set aside in a previous appeal.
- 2 Whether hearing the same appeal twice would amount to double jeopardy or procedural impropriety.
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.
Court Disposition
appeal struck out
Orders
- Nanyuki Criminal Appeal Number 19 of 2015 is struck out.
- The file is to be closed.
Full Case Text
Judgment text and source record
16 paragraphs
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