[1989] KECA 17 (KLR)
The Court of Appeal held that the hearing of the appellant's appeal in his absence, despite an order for his production and his expressed wish to be present, was an incurable irregularity. Furthermore, the purported vacation of the Chief Justice's direction for a two-judge bench by persons without proper authority...
Source-derived case information.
- Citation
- [1989] KECA 17 (KLR)
- Parties
- Appellant: Clay Godwin Wambulwa; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 1989
- Procedural Posture
- Criminal Appeal / Appeal From High Court Judgment
- Outcome
- Appeal allowed to the extent that the High Court judgment and orders are set aside; matter remitted for rehearing.
- Judges
- EN Juma, JE Gicheru, RO Kwach
- Legal Topics
- Right to Be Present, Appeal Procedure, Irregularity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clay Godwin Wambulwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Judgment
Legal Issues
- 1 Whether the hearing of the appellant's appeal in his absence constituted a fatal irregularity.
- 2 Whether the order vacating the direction for a two-judge bench was valid under section 359(1) of the Criminal Procedure Code.
- 3 Whether the proceedings before the Commissioner of Assize were a nullity in law.
Ratio Decidendi
The Court of Appeal held that the hearing of the appellant's appeal in his absence, despite an order for his production and his expressed wish to be present, was an incurable irregularity. Furthermore, the purported vacation of the Chief Justice's direction for a two-judge bench by persons without proper authority rendered the proceedings a nullity. Consequently, the judgment and orders of the High Court were set aside, and the matter was remitted for hearing before a properly constituted bench.
Court Disposition
Appeal allowed to the extent that the High Court judgment and orders are set aside; matter remitted for rehearing.
Orders
- The judgment and orders of the High Court are set aside.
- The appeal is to be heard with dispatch by a bench of two judges other than those previously involved.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Nyarangi, Gicheru & Kwach, JJA )
CRIMINAL APPEAL NO 17 OF 1989
Between
CLAY GODWIN WAMBULWA............................ APPELLANT
AND
REPUBLIC.........................................................RESPONDENT
JUDGMENT
December 6, 1989, Nyarangi, Gicheru & Kwach, JJA, delivered the following judgment.
There is before us an appeal from the judgment of the Commissioner of Assize. Behan delivered on 17th June, 1988 dismissing the appellant’s appeal against conviction and sentence.
The appeal before us is based on the five grounds of appeal the substance of which is that the appeal was heard in the appellant’s absence notwithstanding that he wished to be present.
There is a matter touching on section 359(1) of the Criminal Procedure Code which goes to the root of the appeal. Shields, J acting on a direction by the justice directed that this appeal be heard by two judges. However, on 1May 11, 1988 Mbogholi, J and Commissioner of Assize Behand, purported to vacate the order of Shields, J and as a consequence the appeal was heard by the Commissioner of Assize. With utmost respect, the subsequent direction was an error of law. The two did not have the authority of the chief justice in writing to direct as they purported to do. It follows therefore that the proceedings presided over by the Commissioner of Assize, Beham are a nullity in law.
There is one more matter of relevance. The appellant indicated that he waited to be present at the hearing of the appeal and an order was made for his production at the hearing. On the hearing date, the appellant was absent and unrepresented. That is an incurable irregularity.
For the reasons already stated we set aside the judgment and orders of the High Court and we order that the appeal be herd with dispatch by a bench of two judges other than the two who have dealt with the matter. It follows that the appeal will be heard at Kisumu High Court.
To that limited extend the appeal succeeds. The appellant shall remain in custody until his appeal is heard and determined.
Dated and Delivered at Kisumu this 6th day of December, 1989
J.O NYARANGI
...............................
JUDGE OF APPEAL
J.E GICHERU
...............................
JUDGE OF APPEAL
R.O KWACH
...............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR