[2005] KEHC 934 (KLR)
The court found that the applicant failed to provide a credible or satisfactory explanation for his absence on the scheduled hearing date. The applicant did not make reasonable efforts to confirm the status of his case or contact his advocate, nor did he provide supporting evidence from the registry officer who...
Source-derived case information.
- Citation
- [2005] KEHC 934 (KLR)
- Parties
- Appellant: Joel Omulo Nyandieka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 336 of 2004
- Procedural Posture
- Criminal Appeal / Ruling on Application to Set Aside Bond Cancellation and Warrant of Arrest
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Failure to Attend Court, Setting Aside Orders, Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Omulo Nyandieka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application to Set Aside Bond Cancellation and Warrant of Arrest
Legal Issues
- 1 Whether the applicant had sufficient cause for his absence in court on 23rd November, 2005.
- 2 Whether the orders cancelling bond and issuing a warrant of arrest should be set aside.
- 3 Whether the application was properly brought under the correct legal provisions.
Ratio Decidendi
The court found that the applicant failed to provide a credible or satisfactory explanation for his absence on the scheduled hearing date. The applicant did not make reasonable efforts to confirm the status of his case or contact his advocate, nor did he provide supporting evidence from the registry officer who allegedly advised him to leave. Furthermore, the application was brought under the wrong legal provisions. As a result, the court held that there was no merit in the application and dismissed it, ordering that the applicant continue to serve his sentence. The appeal was scheduled for hearing at a later date.
Court Disposition
application dismissed
Orders
- The application to set aside the orders of 23rd November, 2005 is dismissed.
- The applicant shall continue to serve his sentence.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 336 of 2004
(From original conviction and sentence in Criminal Case No. 607 of 2003 of the Chief
Magistrate’s Court at NAKURU –
S. MUKETI (MRS)
JOEL OMULO NYANDIEKA…………………………..APPLICANT/APPELLANT
VERSUS
REPUBLIC………………………………………….…DEFENDANT/RESPONDENT
RULING
The applicant was convicted for the offence of stealing by servant and was sentenced to 12 months imprisonment. He applied to the High Court for his release on bail pending appeal and the court ordered his release on his own bond of Kshs.100,000/- with a surety for a similar amount. The applicant was released from custody and his appeal was listed for hearing on 19th October, 2005. On that day he failed to attend court for no apparent reason. Mr. Juma Advocate held brief for the applicant’s advocate who was on record then, Mr. Orina, and sought an adjournment saying that Mr. Orina was engaged before another court.Nothing was said regarding the appellant’s absence. Justice Kimaru adjourned the hearing of the appeal to 23rd November, 2005 and ordered that the appellant be present on that day. On 23rd November, 2005 both the appellant and his advocate did not appear before Justice Kimaru for the hearing of the appeal as ordered. The court cancelled the bond which he had been granted and issued a warrant for his arrest and committal to serve his jail term. The court further ordered that the hearing of the appeal could be fixed while the appellant was serving his sentence.
On 25th November, 2005 the appellant filed an application under Section 357 of the Criminal Procedure Code seeking to set aside the orders made on 23rd November, 2005. In his affidavit in support of the application, he stated that on the material day he attended court but realised that the matter was not listed in the cause list and he was advised by an officer in the criminal registry that he could go away and wait for another date to be fixed and he did so, only to learn later that the file had been taken to court and the aforesaid orders issued.
The applicant did not say that he made any effort to trace his advocate to find out from him the fate of the matter. He did not appear before Justice Kimaru’s court to confirm if the file was there or not. There was no affidavit sworn by the criminal registry officer who was said to be one Carol, confirming that she actually told the appellant to go home upon realising that the matter was not in the cause list.
I find the application lacking in merits. I am also not satisfied by the explanation given by the applicant for his absence. The application is also brought under the wrong provisions of the law. I dismiss the application and order that the applicant continues to serve his sentence. His appeal will be heard on 30/1/2006.
DATED, SIGNED AND DELIVERED at Nakuru this 2nd day of December, 2005 in the
presence of Mr. Rabera for Mr. Makori for appellant and Mr. Gumo, Assistant Deputy
Public Prosecutor.
D. MUSINGA
JUDGE
2/12/2005
MUGA APONDI
JUDGE
2nd December, 2005