[2018] KEHC 3044 (KLR)
The court held that the appellant, having had his earlier appeal summarily rejected, was not entitled to file a fresh appeal over the same subject matter. The proper procedure would have been to challenge the decision of the appellate judge in the earlier appeal, not to initiate a new appeal. Filing a fresh appeal...
Source-derived case information.
- Citation
- [2018] KEHC 3044 (KLR)
- Parties
- Appellant: Kevin Odhiambo Ochola; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 76 of 2016
- Procedural Posture
- Criminal Appeal / Ruling on Appeal
- Outcome
- appeal dismissed as incompetent and an abuse of court process
- Judges
- RE Aburili
- Legal Topics
- Attempted Murder, Plea of Guilty, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Odhiambo Ochola
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal
Legal Issues
- 1 Whether the appellant was entitled to file a fresh appeal after the summary rejection of his earlier appeal.
- 2 Whether the current appeal amounts to an abuse of court process.
Ratio Decidendi
The court held that the appellant, having had his earlier appeal summarily rejected, was not entitled to file a fresh appeal over the same subject matter. The proper procedure would have been to challenge the decision of the appellate judge in the earlier appeal, not to initiate a new appeal. Filing a fresh appeal in these circumstances constitutes an abuse of the court process and renders the appeal fatally incompetent.
Court Disposition
appeal dismissed as incompetent and an abuse of court process
Orders
- The appeal is hereby dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
HC. CRIMINAL APPEAL NO. 76 OF 2016
(CORAM: R. E. ABURILI - J.)
KEVIN ODHIAMBO OCHOLA..................APPELLANT
VERSUS
REPUBLIC..................................................RESPONDENT
(Being an appeal against the sentence dated 28. 03. 2011in
CriminalCase No. 136 of 2011 in UKWALA Law Court
before Hon. E.K. Mwaita - SRM)
RULING
On 28/3/2011, the Appellant herein was convicted of the offence of attempted murder contrary to Section 220(a) of the Penal Code. He was sentenced to serve 20years by Hon. E.K. Mwaita, SRM Ukwala on the Appellant’s own plea of guilty.
The Appellant filed Kisumu HCRA No. 60/2011 which was summarily rejected on 8/7/2011 by Hon. Abida Ali Aroni J. He then waited until 2016 when he filed this appeal.
Albeit, he says that he was not informed of the outcome of his earlier appeal, he should have pursued the said appeal file and not to file a fresh appeal which then amounts to challenging the decision of Abida Ali J.
The Appellant had the opportunity of challenging the decision of Abida Ali Aroni J and not to file another appeal over the same subject matter.
In the premises, I find this appeal fatally incompetent and an abuse of court process. The same is hereby dismissed.
Dated, Signed and Delivered at SIAYA this 8th Day of October 2018.
R.E. ABURILI
JUDGE
In the presence of:
Mr. Okach: Prosecution Counsel for the State
Court Assistant: Winne, Modestar