[2017] KEHC 8807 (KLR)
The court found that the absence of petitions of appeal for the first and second appellants, the failure to consolidate the appeals, and the lack of confirmation regarding the death of the third appellant constituted serious procedural irregularities. These lapses, particularly in a case where the appellants faced...
Source-derived case information.
- Citation
- [2017] KEHC 8807 (KLR)
- Parties
- Appellant: Malik Okinda Abdallah; Appellant: Ismael Abdallah Were; Appellant: Kassim Shiundu Murunga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 262 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Procedural Irregularities Prior to Judgment
- Outcome
- Mistrial declared; appeal to be heard afresh before another judge.
- Judges
- AT Sitati
- Legal Topics
- Appeal Procedure, Mistrial, Death of Appellant, Consolidation of Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malik Okinda Abdallah
Appellant
Ismael Abdallah Were
Appellant
Kassim Shiundu Murunga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Procedural Irregularities Prior to Judgment
Legal Issues
- 1 Whether the absence of petitions of appeal for the first and second appellants invalidates the proceedings.
- 2 Whether the court's failure to consolidate the appeals and confirm the death of the third appellant constitutes a procedural irregularity.
- 3 Whether proceeding to judgment would prejudice the appellants given the procedural lapses.
Ratio Decidendi
The court found that the absence of petitions of appeal for the first and second appellants, the failure to consolidate the appeals, and the lack of confirmation regarding the death of the third appellant constituted serious procedural irregularities. These lapses, particularly in a case where the appellants faced the death penalty, created a real risk of prejudice and undermined the fairness of the appellate process. The court determined that proceeding to judgment under these circumstances would be unjust. Consequently, the hearing of the appeal was declared a mistrial, and directions were given for the matter to be heard afresh before a different judge, with instructions to regularize...
Court Disposition
Mistrial declared; appeal to be heard afresh before another judge.
Orders
- The hearing of the appeal on 16.2.2017 is declared a mistrial.
- The appeal shall be heard afresh before High Court 2.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 262 OF 2012
BETWEEN
MALIK OKINDA ABDALLAH……………...………..…....1ST APPELLANT
ISMAEL ABDALLAH WERE……….…………………..…2ND APPELLANT
KASSIM SHIUNDU MURUNGA (DECEASED) ….……3RD APPELLANT
AND
REPUBLIC…………………....………...……………………RESPONDENT
(Being an appeal from both conviction and sentence in Mumias Principal Magistrate’s Court Case No. 339 of 2011 dated 24. 10. 2012)
R U L I N G
1. Though this appeal is meant to be for judgment today, a clear look at the file during preparations for writing the judgment revealed that apart from the third appellant Kassim Shiundu Murunga (now deceased), the first and second appellants’ petition of appeal are not on the file. Secondly, when the appeal came up for admission on 27. 11. 2015, this court made an order requiring the Deputy Registrar of this Honourable Court to “Open 3 separate appeal files before fixing” the appeal for directions on a date in the new term.” On 14. 01. 2016 and without first of all complying with the orders of 27. 11. 2015, this appeal was fixed for directions on 29. 02. 2016.
2. There is no record for 29. 02. 2016, but on 01. 03. 2016, the matter was placed before the Deputy Registrar for mention. The appellants were however not produced and an order was made for further mention on 07. 03. 2016. During the mention before the Deputy Registrar, only the first appellant, Malik Okinda Abdallah was in court. He informed the court that whereas the second appellant was being held at Naivasha GK Prison, the third appellant, Kassim Shiundu Murunga was since deceased. For those reasons the Deputy registrar gave a further mention on 07. 04. 2016 and a production order for the second appellant. During the mention on 07. 03. 2016, the first appellant was supplied with proceedings; however, it was not until 01. 12. 2016 that both appellants were produced before this court.
3. On 01. 12. 2016, both appellants were supplied with complete set of proceedings, including the charge sheet and the appeal fixed for hearing on 16. 02. 2017.
4. During the hearing of the appeal on `16. 02. 2017, the court very inadvertently, did not make an order for consolidation of the appeals and did not also confirm that there were three separate appeal files nor did it deal with the issue of the appeal of the third appellant which should ordinarily have abated with his death. The record does not also contain a confirmation by the prosecution that the third appellant is indeed dead.
5. In light of all the above, and considering the fact that the appellants are on death row on two counts of robbery with violence contrary to section 296(2) of the Penal Code, it would be highly prejudicial to the appellants for this court to proceed and write a judgment on the appeal.
6. In the circumstances, I declare the hearing of this appeal on 16. 2.2017 a mistrial and direct that this appeal be heard afresh before High Court 2. In the meantime, the Deputy Registrar shall forthwith open three separate appeal files for Criminal appeal numbers 261 of 2012, 262 of 2012 and 263 of 2012 respectively7 in which the appellants are Malik Okinda Abdallah, Ismael Abdallah were and Kassim Shiundu Murunga.
7. Mention before High Court 2 on 25. 5.2017 for directions in the matter. The two appellants shall remain in custody.
Orders accordingly.
Ruling delivered, dated and signed in open court at Kakamega this 23rd day of May 2017
RUTH N. SITATI
JUDGE
In the presence of;-
Present in person……………for 1st appellant
Present in person…………...for 2nd appellant
Deceased ..………………..….for 3rd appellant
Mr. Juma Ocheing………...………..for the state
polycap……………………….....Court Assistant.