[2014] KECA 32 (KLR)
The Court found that since the appellant had served his sentence and was no longer in prison, and his whereabouts were unknown, it was not feasible to proceed with the hearing of the appeal. In such circumstances, Rule 71(6) of the Court of Appeal Rules permits the court to mark the appeal as abated. The court...
Source-derived case information.
- Citation
- [2014] KECA 32 (KLR)
- Parties
- Appellant: Hezekiel Osiro Osiro; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 239 of 2009
- Procedural Posture
- Criminal Appeal / Order on Abatement of Appeal
- Outcome
- Appeal marked as abated.
- Judges
- CA Otieno, S ole Kantai
- Legal Topics
- Appeal Abatement, Sentence Completion, Absence of Appellant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hezekiel Osiro Osiro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Order on Abatement of Appeal
Legal Issues
- 1 Whether the appeal should proceed in the absence of the appellant who has served his sentence and whose whereabouts are unknown.
- 2 Whether the appeal should be marked as abated under Rule 71(6) of the Court of Appeal Rules.
Ratio Decidendi
The Court found that since the appellant had served his sentence and was no longer in prison, and his whereabouts were unknown, it was not feasible to proceed with the hearing of the appeal. In such circumstances, Rule 71(6) of the Court of Appeal Rules permits the court to mark the appeal as abated. The court exercised its discretion accordingly, noting the impracticability of serving the hearing notice on the appellant and the futility of continuing with the appeal in his absence.
Court Disposition
Appeal marked as abated.
Orders
- The appeal is marked as abated pursuant to Rule 71(6) of the Court of Appeal Rules.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: ONYANGO OTIENO, AZANGALALA & KANTAI. JJ.A.)
CRIMINAL APPEAL NO. 239 OF 2009
BETWEEN
HEZEKIEL OSIRO OSIRO................................................APPELLANT
AND
REPUBLIC ......................................................................RESPONDENT
(An Appeal from a Judgment of the High Court of Kenya at Kisii (Musinga, J.) dated 22nd July, 2009
in
H.C.CR.A. NO. 59 OF 2007)
*********************
ORDER OF THE COURT
On this appeal being called out for hearing, the appellant, who according to the record was sentenced to imprisonment for a term of seven (7) years on 13th April 2007, is not present to prosecute his appeal. Mr. Abele, the learned Assistant Director of Public Prosecutions says the Prisons Department has informed, him that the appellant is no longer in the prison. It would appear he has served the sentence and hence he is out of prison and to get him for purposes of service upon him of the hearing notice may not be easy as his address is not known.
In the circumstances, what commends itself to us and which we hereby do is to mark the appeal as having abated pursuant to Rule 71 (6) of the Court of Appeal Rules.
These are the orders of the Court.
Dated and Made at Kisumu this 31st day of July, 2014.
J.W. ONYANGO OTIENO
………………………………
JUDGE OF APPEAL
F.AZANGALALA
…………………………………
JUDGE OF APPEAL
S. ole KANTAI
………………………………
JUDGE OF APPEAL
I certify that this is a true copy
of the original.
DEPUTY REGISTRAR