[2016] KECA 138 (KLR)
The Court granted leave to the appellant to withdraw his appeal pursuant to rule 68(4) of the Court of Appeal Rules, as there was no objection from the respondent. Upon reviewing the record, the Court found that the committal warrant incorrectly stated that the appellant had been convicted of robbery with violence,...
Source-derived case information.
- Citation
- [2016] KECA 138 (KLR)
- Parties
- Appellant: Charles Onyango Odhiambo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 83 of 2014
- Procedural Posture
- Criminal Appeal / Second Appeal; Application for Withdrawal and Rectification of Committal Warrant
- Outcome
- Appeal withdrawn; committal warrant to be rectified.
- Judges
- DK Maraga, DK Musinga, SG Kairu
- Legal Topics
- Imitation Firearm Offences, Withdrawal of Appeal, Committal Warrant Rectification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Onyango Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Application for Withdrawal and Rectification of Committal Warrant
Legal Issues
- 1 Whether the appellant should be granted leave to withdraw the appeal.
- 2 Whether the committal warrant should be rectified to accurately reflect the conviction for possession of an imitation firearm.
Ratio Decidendi
The Court granted leave to the appellant to withdraw his appeal pursuant to rule 68(4) of the Court of Appeal Rules, as there was no objection from the respondent. Upon reviewing the record, the Court found that the committal warrant incorrectly stated that the appellant had been convicted of robbery with violence, whereas he had actually been acquitted of that charge and convicted only for possession of an imitation firearm. The Court directed that the committal warrant be rectified to accurately reflect the conviction for possession of an imitation firearm contrary to section 34(1) of the Firearms Act. The appeal was marked as withdrawn and orders for rectification were issued accordingly.
Court Disposition
Appeal withdrawn; committal warrant to be rectified.
Orders
- Leave granted to withdraw the appeal.
- Appeal marked as withdrawn.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: MARAGA, MUSINGA & GATEMBU, JJ.A.)
CRIMINAL APPEAL NO. 83 OF 2014
BETWEEN
CHARLES ONYANGO ODHIAMBO…………………..APPELLANT
AND
REPUBLIC…………………………………….……RESPONDENT
(Appeal from a conviction and/or Judgment of the High Court of Kenya
at Kisumu, (Muchelule & Chemitei, JJ.) dated 21st January, 2014
in
HCCRC. NO. 138 OF 2012)
********************
RULING OF THE COURT
1. On 19th December, 2012, the appellant was convicted by the Senior Principal Magistrate, Siaya, on a charge of possession of an imitation firearm contrary to section 34 (1)of theFirearms Act. He was sentenced to 7 years’ imprisonment. Being aggrieved by that conviction and sentence, the appellant preferred an appeal to the High Court. The appeal was dismissed. The appellant moved to this Court on a second appeal.
2. When the appeal came up for hearing before this Court, the appellant, who was unrepresented, sought leave to withdraw the appeal. He however urged the Court to order rectification of the committal warrant which shows that he had been convicted for robbery with violence and sentenced to 7 years’ imprisonment.
3. Mr. Ketoo, learned prosecution counsel, had no objection to the withdrawal of the appeal as well as the rectification of the committal warrant as sought by the appellant.
4. Pursuant to rule 68 (4)of theCourtofAppeal Rules, we grant leave to the appellant to withdraw the appeal and hereby proceed to mark the appeal as withdrawn.
5. We have looked at the committal warrant in the record of appeal and realized that it shows that the appellant was convicted for the offence of robbery with violence contrary to section 296 (2)of thePenal Code in Criminal Case No. 445of2011 in the Senior Principal Magistrate’s Court at Siaya, which is not correct.
6. The correct position is that the appellant had been charged with three counts.
Count 1 was for the offence of robbery with violence, count 2 was for the offence of rape and count 3 was for possession of imitation firearm. He was acquitted of counts 1and2 but convicted of count 3.
7. In the circumstances, we direct that the committal warrant be rectified accordingly as to reflect that the appellant was convicted for possession of imitation firearm contrary to section 34 (1)of theFirearms Act. Orders accordingly.
DATED and delivered at Kisumu this 28th day of June, 2016.
D. K. MARAGA
JUDGE OF APPEAL
D. K. MUSINGA
JUDGE OF APPEAL
S. GATEMBU KAIRU
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.