[2014] KEHC 8851 (KLR)
The court found that since the appellant had previously appealed a conviction on similar facts before the same judge, it would be in the interests of justice and fairness for the current appeal to be heard by a different judge. To avoid any perception of bias or prejudgment, the proceedings of 26th November 2014...
Source-derived case information.
- Citation
- [2014] KEHC 8851 (KLR)
- Parties
- Appellant: Edwin Ochieng Ogada; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Transfer of Appeal
- Outcome
- proceedings set aside and matter transferred
- Legal Topics
- Stealing Offences, Appeals Process, Transfer of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Ochieng Ogada
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Transfer of Appeal
Legal Issues
- 1 Whether the appellant's appeal should be heard by a different judge due to similarity with a previously determined appeal involving the same appellant and similar facts.
- 2 Whether the proceedings should be set aside and the matter transferred to another court for hearing and determination.
Ratio Decidendi
The court found that since the appellant had previously appealed a conviction on similar facts before the same judge, it would be in the interests of justice and fairness for the current appeal to be heard by a different judge. To avoid any perception of bias or prejudgment, the proceedings of 26th November 2014 were set aside and the matter was ordered to be transferred to the High Court at Kisii for hearing and determination. The court exercised its inherent jurisdiction and powers under the Criminal Procedure Code to ensure impartiality and uphold the principles of natural justice.
Court Disposition
proceedings set aside and matter transferred
Orders
- The proceedings of 26th November 2014 are set aside.
- The matter is transferred to the High Court at Kisii for hearing and determination.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 34 OF 2014
BETWEEN
EDWIN OCHIENG OGADA …………………..……….…..... APPELLANT
AND
REPUBLIC ………...……………………….…………….. RESPONDENT
(Appeal from the original conviction and sentence in Criminal Case No. 203 of 2013 at the Chief Magistrates Court at Homa Bay, Hon. N. Kariuki, RM, dated 23rd May 2014)
RULING
The appellant, EDWIN OCHIENG OGADA, was charged with offence of stealing a motorcycle contrary to section 278A of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 3rd March 2013 at Homa Bay Town within Homa Bay District, the appellant stole one motorcycle engine no. WCH85986CWH25879 valued at Kshs 87,000. 00, the property of Fredrick Nyamori Nyangwatho. He was convicted and sentenced to 4 years imprisonment. He now appeals against the conviction and sentence.
The appellant faced similar charges in Homa Bay Criminal Case No. 204 of 2014 and was convicted. He appealed against the conviction and sentence and I heard his appeal to wit; Homa Bay Criminal Appeal No. 17 of 2014. Having heard and determined that appeal and considering the similarity of the facts and circumstances, I think it would only be fair for the appellant to be heard by another judge.
In the circumstances and in the interests of justice, I set aside the proceedings of 26th November 2014 and order that the matter be transferred to the High Court at Kisii for hearing and determination. The appellant shall appear before the Deputy Registrar, High Court at Kisii on 22nd December 2014.
DATED and DELIVERED at HOMA BAY this 15th day of December 2014
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.