[2018] KEHC 8010 (KLR)
The High Court lacks jurisdiction to grant a fresh trial in circumstances where the applicant has already been convicted and has appealed to the High Court. If the High Court appeal was dismissed, the proper forum for further redress is the Court of Appeal. The application before the court was found to be...
Source-derived case information.
- Citation
- [2018] KEHC 8010 (KLR)
- Parties
- Applicant: Joseph Mutsotsi Opanda; Applicant: Julius Mutemi Kilonzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 28 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion Seeking Fresh Trial
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Fresh Trial Application, Jurisdiction of High Court, Appeal Process, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutsotsi Opanda
Applicant
Julius Mutemi Kilonzi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion Seeking Fresh Trial
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a fresh trial after a conviction and appeal.
- 2 Whether the applicant's remedy lies in the Court of Appeal or before the High Court.
- 3 Whether the application as presented is competent and discloses sufficient grounds for a retrial.
Ratio Decidendi
The High Court lacks jurisdiction to grant a fresh trial in circumstances where the applicant has already been convicted and has appealed to the High Court. If the High Court appeal was dismissed, the proper forum for further redress is the Court of Appeal. The application before the court was found to be incompetent as it did not disclose the outcome of the High Court appeal and failed to establish grounds for a retrial. The court agreed with the State that it cannot sit on appeal or entertain the application as presented, and therefore dismissed it.
Court Disposition
application dismissed
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION NO.28 OF 2017
JOSEPH MUTSOTSI OPANDA…..………1ST APPLICANT
JULIUS MUTEMI KILONZI……………….2ND APPLICANT
VERSUS
REPUBLIC………………………….………..RESPONDENT
RULING
1. The application before me is a notice of motion where the applicants are seeking a fresh trial citing contravention of Articles 165(3) (b) (c) 7 and 22 and 259 of the Constitution.
2. The 1st Applicant Joseph Musotsi Opanda withdrew from the application. Julius Mutemi Kilonzi the 2nd applicant proceeded to argue his application stating that he had been charged with the offence of robbery with violence and sentenced to 20 years and he is now seeking help.
3. Mr. Oimbo State Counsel objected to the application on grounds that this Court cannot sit on appeal in Case already decided by a Court of concurrent Jurisdiction and that redness if any is only available in the Court of Appeal. He urged for the application to be dismissed.
4. The application before me is scanty with information. However, from the heading it appears that the applicant was initially charged in Bungoma Criminal Case Number 201 of 2004 and he then appealed to the High Court in Criminal Appeal No.178 of 2014.
5. He has not stated what happened to the appeal in the High Court. If the same were dismissed then his redness lies in the Court of Appeal.
If the same is pending he has an option of setting it down for hearing where he can seek for a retrial.
6. I agree with the State that this Court cannot sit on appeal or entertain the application as it stands as the same cannot succeed.
It is therefore dismissed.
DATED and DELIVERED at BUNGOMA this 22nd day of February, 2018
ALI-ARONI
JUDGE