[2002] KEHC 510 (KLR)
The court held that it lacked jurisdiction to determine the appeal because a previous bench had already quashed the conviction and sentence and ordered a re-trial. The operative order of 30th October, 2000 by Justices Oguk and Mitey remains in force, and the matter is left to the Attorney General to comply with the...
Source-derived case information.
- Citation
- [2002] KEHC 510 (KLR)
- Parties
- Appellant: Charles Ondeko Orua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1053 of 1994
- Procedural Posture
- Criminal Appeal / Order Following Prior Judgment and Directions for Re Trial
- Outcome
- No jurisdiction; prior order for re-trial stands.
- Legal Topics
- Appeal Procedure, Retrial Orders, Quashing Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ondeko Orua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Order Following Prior Judgment and Directions for Re Trial
Legal Issues
- 1 Whether the High Court has jurisdiction to determine the appeal after a prior order for re-trial was made and conviction quashed.
- 2 Whether the Attorney General has complied with the order for re-trial issued by the previous bench.
Ratio Decidendi
The court held that it lacked jurisdiction to determine the appeal because a previous bench had already quashed the conviction and sentence and ordered a re-trial. The operative order of 30th October, 2000 by Justices Oguk and Mitey remains in force, and the matter is left to the Attorney General to comply with the directions for re-trial or take any other lawful prosecutorial action. The court expressed concern over the Attorney General's delay in implementing the order and directed that the re-trial be pursued expeditiously.
Court Disposition
No jurisdiction; prior order for re-trial stands.
Orders
- The court has no jurisdiction to decide on this appeal as the conviction was already quashed and a re-trial ordered.
- The Attorney General is to comply with the order for re-trial or take any other lawful course regarding prosecution.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.1053 OF 1994
(From Original Conviction and Sentence in Criminal Case No.2073 of
1992 of the Principal Magistrate’s Court at Kakamega)
CHARLES ONDEKO ORUA ………………….………APPELLANT VERSUS REPUBLIC.……………………………………………RESPONDENT O R D E R Before we could finish delivering the judgment, we have noticed that this appeal had come up for hearing earlier on 30th October, 2000 before Hon. Justice Oguk and Mitey, J in the presence of the appellant and M/S Wanyama, the State Counsel. The appeal record shows that the said two judges observing that the appeal was pending since 1994 and the record of the court was not available as after a diligent search it was not traced. Saying as stated above, the two Judges set aside the conviction and sentence and ordered a re-trial.
They further ordered that the appellant be expeditiously produced before the Chief Magistrate, Kakamega on 20th November, 2000 for plea and re-trial. In the above circumstances we have no jurisdiction to decide on this appeal. We repeat that the two Judges had on 30th October, 2000 quashed the conviction and set aside the sentences. We leave it to the Attorney General to re-try the appellant as stated by Justice Oguk and Mitey, J or to decide taking any other course using his authority relating to the criminal prosecution.
We record our surprise that the Attorney general has not followed up the order made by the two Judges for so long and we trust that it now would be done on or before 15th February, 2002. DATED and DELIVERED at NAIROBI this 25th day of January, 2002. V.V. PATEL JUDGE W.K. TUIYOT JUDGE