[1980] KECA 16 (KLR)
The Court of Appeal held that the absence of a written record and reasons for the High Court's dismissal of the appellant's appeal deprived the appellant of his statutory right to appeal to the Court of Appeal. Without knowing the decision and the reasons, it is impossible for the appellate court to determine...
Source-derived case information.
- Citation
- [1980] KECA 16 (KLR)
- Parties
- Appellant: John Mosee; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 2 of 1980
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Against High Court Order
- Outcome
- Appeal allowed; matter remitted to High Court for rehearing.
- Judges
- CB Madan, EJE Law, KD Potter
- Legal Topics
- Appeals Procedure, Record of Proceedings, Right to Reasoned Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mosee
Appellant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Against High Court Order
Legal Issues
- 1 Whether the High Court erred by dismissing the appeal without providing reasons for its decision.
- 2 Whether the absence of a written record and reasons deprives the appellant of his statutory right of appeal to the Court of Appeal.
Ratio Decidendi
The Court of Appeal held that the absence of a written record and reasons for the High Court's dismissal of the appellant's appeal deprived the appellant of his statutory right to appeal to the Court of Appeal. Without knowing the decision and the reasons, it is impossible for the appellate court to determine whether there are grounds for appeal on a matter of law. The only proper course is to remit the matter to the High Court for the original appeal to be reheard and for a reasoned decision to be provided.
Court Disposition
Appeal allowed; matter remitted to High Court for rehearing.
Orders
- The matter is remitted to the High Court for the original appeal to be reheard according to law.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Madan, Law & Potter JJ A)
CRIMINAL APPLICATION NO. NAI 2 OF 1980
BETWEEN
JOHN MOSEE.............................................APPELLANT
AND
REPUBLIC...............................................RESPONDENT
(Application for leave to appeal against the order of Cotran J on 22nd October 1979 in Criminal Appeal No 812 of 1979)
JUDGMENT OF THE COURT
The appellant was convicted in the Senior Resident Magistrate’s Court of robbery, contrary to section 296(1) of the Penal Code. His appeal to the High Court was dismissed in the following two words, “Appeal dismissed”. Nothing else appears in the record to show what transpired at the hearing of the appeal or the reasons for the decision.
As held in Misana v The Republic[1967] EA 334, there being no written record of the decision of the High Court nor any reason for the decision, the only proper course is to remit the matter to the High Court for the original appeal to be reheard. The court’s opinion was expressed as follows (at page 336):
The appellant, on appeal to the High Court, is entitled to have all the evidence before the Resident Magistrate re-examined and evaluated by the High Court in order to determine whether there was evidence upon which the Resident Magistrate could properly make the finding which he did (see Shantilal Maneklal Ruwala v R[1957] EA 570). When this is done the appellant is also entitled to appeal to this Court on a matter of law from the decision of the High Court. Quite apart from the fact that on an appeal to the High Court from a Resident Magistrate, a written record should exist setting out the decision of the High Court. It is quite impossible for an appellant effectively to appeal to this Court on a matter of law unless this Court knows not only the decision of the High Court but, at least in broad outline, the reasons for that decision. In this case there is neither any written record of the decision of the High Court nor any reasons for that decision. It is clearly impossible for this Court, in the absence of such decision and reasons, to arrive at a decision whether, as a matter of law, the appellant had good grounds of appeal. In effect, therefore, the appellant has, by the action of Erokwu J, had been deprived of his statutory right appeal to this Court; and he has also been deprived of his right of knowing the reasons, however brief they may be, for the decision of the High Court on his appeal.
Accordingly, we remit the matter to the High Court for the original appeal to be reheard according to law.
Order accordingly.
Dated and delivered at Kisumuthis 9th June 1980.
C.B MADAN
……………......
JUDGE OF APPEAL
E.J.E LAW
……………......
JUDGE OF APPEAL
K.D POTTER
……………......
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR