[2015] KEHC 4411 (KLR)
The High Court held that it lacked jurisdiction to entertain any further challenge to the subordinate court's decision after the first appeal had been heard and determined. The court found that the proper forum for seeking extension of time to file a second appeal is the Court of Appeal, not the High Court. The...
Source-derived case information.
- Citation
- [2015] KEHC 4411 (KLR)
- Parties
- Appellant: Dickson Mugosi Matiko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 88 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Notice of Motion and Petition of Appeal After First Appeal Dismissed
- Outcome
- application struck out for want of jurisdiction
- Legal Topics
- Robbery With Violence, Jurisdiction of High Court, Appeals Process, Extension of Time, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Mugosi Matiko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Notice of Motion and Petition of Appeal After First Appeal Dismissed
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a challenge to the subordinate court decision after the first appeal has been determined.
- 2 Whether the appellant can seek extension of time to lodge a second appeal after dismissal of the first appeal.
- 3 Whether the Notice of Motion and petition of appeal are properly before the High Court.
Ratio Decidendi
The High Court held that it lacked jurisdiction to entertain any further challenge to the subordinate court's decision after the first appeal had been heard and determined. The court found that the proper forum for seeking extension of time to file a second appeal is the Court of Appeal, not the High Court. The Notice of Motion and the petition of appeal, which sought to challenge the subordinate court's judgment and to obtain leave to appeal out of time, were therefore improperly before the High Court. The court struck out the application and informed the appellant of his right to seek extension of time in the Court of Appeal.
Court Disposition
application struck out for want of jurisdiction
Orders
- The Notice of Motion filed on 30th July, 2013 is struck out.
- The applicant is informed of his right to lodge an application for extension of time to file an appeal against the appellate decision of the High Court in the Court of Appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
CRIMINAL APPEAL NO. 88 OF 2014
BETWEEN
DICKSON MUGOSI MATIKO ….......................... APPELLANT
AND
REPUBLIC …...................................... RESPONDENT
(Being an appeal from the original conviction and sentence in Criminal Case No. 420 of 2008 of the Senior Principal Magistrate’s Court at Migori by Hon. E.A. Awino, Ag SPM delivered on 16th April 2009)
RULING
The appellant, DICKSON MUGOSI MATIKO, was the accused in Migori SPM Criminal Case No. 420 of 2008. He was charged with robbery with violence. The particulars of the offence were that on 5th September 2008 at Isebania Township, Kuria District he, jointly with others not before the court, while armed with AK 47 rifles robbed Mohammed Hashi of Kshs. 964,700/=, 75 USD and TZ Shs. 200,000/= and at or immediately before or immediately after such robbery used actual violence by shooting one Samuel Ongono Omwege. He was tried, convicted and sentenced to death on 16th April 2009.
After conviction he lodged an appeal to the High Court to wit, Kisii Criminal Appeal No. 204 of 2009. The appeal was heard by Sitati and Muriithi JJ., who dismissed it on 31st July 2014. The appellant did not appeal to the Court of Appeal.
He thereafter filed a Notice of Motion on 30th July 2013 at the High Court at Kisii being HC Misc. Criminal Application No. 64 of 2013. The application is not very clear as to what it seeks but it recites the provisions of Articles 21, 22 and 26 of the Constitution. The supplementary affidavit in support of the application refers to “CA Rule 42” and the appellant seeks to be allowed to lodge the appeal out of time. In addition, the appellant has filed a petition of appeal in which he contests the appellate decision affecting the subordinate court judgment. Unfortunately, when the file was transferred to the High Court at Migori, it was opened as the above named appeal.
The appellant filed supplementary grounds in support of the application and the petition of appeal. In the grounds, which he relied upon at the hearing, he raises various issues concerning the judgment in the subordinate court. In summary, the appellant contests the evidence of identification the learned magistrate relied upon to found the conviction.
Having considered the application, the petition of appeal and the facts, it is clear that this court cannot entertain any challenge to the subordinate court decision once his first appeal was heard and determined. It is apparent that the appellant intended to move the Court of Appeal for extension of time to lodge a second appeal and he is at liberty to do so in that court.
In the circumstances, this court lacks jurisdiction to determine any other matter and consequently the Notice of Motion filed on 30th July, 2013 is struck out. The applicant is informed of his right to lodge an application for extension of time to file an appeal against the appellate decision of the High Court in the Court of Appeal.
DATED and DELIVERED at MIGORI this 18th day of June, 2015
D. S. MAJANJA
JUDGE
Appellant in person.
Ms Owenga, Senior Prosecuting Counsel, instructed by the Office of the Director of Public Prosecutions.