[2018] KEHC 7078 (KLR)

[2018] KEHC 7078 (KLR)

The court held that it cannot set the appellant at liberty solely due to the failure to provide the lower court record. The appellate process requires the court to review the record and determine the merits of the appeal before granting such relief. The appellant's rights under Article 50(2)(q) are important, but the remedy sought—release from custody—can only be granted after the court has considered the appeal on its merits. The court noted that the appellant could have sought release on bond pending appeal but did not do so. The application was therefore dismissed, and the Executive Officer of Mavoko Law Courts was ordered to appear and explain the delay in forwarding the lower court...

Citation
[2018] KEHC 7078 (KLR)
Parties
Appellant: Daniel Gitau Mungai; Respondent: Republic
Court
High Court
Court Station
High Court at Machakos
Jurisdiction
Kenya
Judgment Date
3 May 2018
Case Number
Criminal Appeal 35 of 2017
Procedural Posture
Criminal Appeal / Ruling on Interlocutory Application
Outcome
application dismissed
Legal Topics
Fair Trial Rights, Delay of Records, Appeal Procedure, Remedies for Rights Violation
Source Language
English
Criminal Law Civil Procedure Fair Trial Rights Delay of Records Appeal Procedure Remedies for Rights Violation

Case Brief

Summary, issues, holding and outcome

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Parties

Daniel Gitau Mungai

Appellant

Republic

Respondent

Procedural Posture

Criminal Appeal / Ruling on Interlocutory Application

Legal Issues

  1. 1 Whether the appellant's right to a fair trial under Article 50(2)(q) of the Constitution has been violated due to failure to provide the lower court record.
  2. 2 Whether the court should set the appellant at liberty due to the delay in availing the lower court record.

Ratio Decidendi

The court held that it cannot set the appellant at liberty solely due to the failure to provide the lower court record. The appellate process requires the court to review the record and determine the merits of the appeal before granting such relief. The appellant's rights under Article 50(2)(q) are important, but the remedy sought—release from custody—can only be granted after the court has considered the appeal on its merits. The court noted that the appellant could have sought release on bond pending appeal but did not do so. The application was therefore dismissed, and the Executive Officer of Mavoko Law Courts was ordered to appear and explain the delay in forwarding the lower court...

Court Disposition

application dismissed

Orders

  • The application is dismissed.
  • The Executive Officer Mavoko Law Courts is ordered to appear before this court on a date to be given by the Deputy Registrar to explain why the lower court file has not been forwarded.