[2013] KEHC 901 (KLR)
The court held that under Section 360 of the Criminal Procedure Code, an appeal only abates upon the death of the appellant. The completion of a prison term or release from prison does not result in abatement. Since no hearing notice was issued to the appellant, he could not have been expected to attend the hearing....
Source-derived case information.
- Citation
- [2013] KEHC 901 (KLR)
- Parties
- Appellant: Henry Makotsi Ayoti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 249 of 2011
- Procedural Posture
- Criminal Appeal / Interlocutory Ruling on Hearing Notice and Scheduling
- Outcome
- Interlocutory orders issued; appeal not determined on merits.
- Judges
- GMA Dulu
- Legal Topics
- Appeal Abatement, Criminal Procedure, Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Makotsi Ayoti
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Ruling on Hearing Notice and Scheduling
Legal Issues
- 1 Does the completion of a prison sentence by an appellant abate a criminal appeal under Kenyan law.
- 2 Was the appellant properly notified of the hearing date for the appeal.
Ratio Decidendi
The court held that under Section 360 of the Criminal Procedure Code, an appeal only abates upon the death of the appellant. The completion of a prison term or release from prison does not result in abatement. Since no hearing notice was issued to the appellant, he could not have been expected to attend the hearing. Therefore, the court ordered that a fresh hearing date be fixed and a hearing notice be issued to the appellant.
Court Disposition
Interlocutory orders issued; appeal not determined on merits.
Orders
- The Deputy Registrar will fix a fresh hearing date for this appeal.
- The Deputy Registrar will issue a hearing notice to the appellant at his address as per the charge sheet.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 249 OF 2011
(An appeal from Judgment of Hon. L. N. Kiniale, District Magistrate II (Prof)
at Butere in Criminal Case No. 156 of 2011 dated 3rd November, 2011)
HENRY MAKOTSI AYOTI …............................................... APPELLANT
VERSUS
REPUBLIC …..................................................................... RESPONDENT
RULING
When this appeal came for hearing on 14th of October, 2013, Miss Opiyo, the learned Prosecuting Counsel informed the court that the appellant had served his two years imprisonment sentence and released on 23/12/2012. The appellant was therefore absent on the date of hearing the appeal.
Section 360 of the Criminal Procedure Code (Cap. 75) only recognizes abatement of appeals in cases of the death of an appellant. A mere release from prison, or completion of the prison term, or payment of a fine does not result in abatement of an appeal.
No hearing notice was issued by the Deputy Registrar for the appellant to attend the hearing of the appeal. He could not be expected to have known of the hearing date.
Consequently, I order as follows -
The Deputy Registrar will fix a fresh hearing date for this appeal.
The Deputy Registrar will issue a hearing notice to the appellant who appears from the charge sheet to come from Elubambo village, Shitati Sub-location, Butere District.
It is so ordered.
Dated and delivered at Kakamega this 22nd day of November, 2013
George Dulu
JUDGE