[2014] KEHC 8787 (KLR)
The court held that there is no statutory right of appeal against a ruling on a submission of no case to answer under section 211 of the Criminal Procedure Code. The right of appeal in criminal matters is strictly governed by the Criminal Procedure Code, which only allows appeals by persons who have been convicted...
Source-derived case information.
- Citation
- [2014] KEHC 8787 (KLR)
- Parties
- Appellant: Mark Odhiambo Otom; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Preliminary Objection/strike Out
- Outcome
- appeal struck out for want of jurisdiction
- Legal Topics
- Right of Appeal, Interlocutory Orders, Criminal Procedure Code, Jurisdiction of Appellate Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Odhiambo Otom
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Preliminary Objection/strike Out
Legal Issues
- 1 Whether there is a statutory right of appeal against a ruling on a submission of no case to answer in a criminal trial.
- 2 Whether the High Court has jurisdiction to entertain an appeal where no right of appeal is provided by statute.
Ratio Decidendi
The court held that there is no statutory right of appeal against a ruling on a submission of no case to answer under section 211 of the Criminal Procedure Code. The right of appeal in criminal matters is strictly governed by the Criminal Procedure Code, which only allows appeals by persons who have been convicted and sentenced. Since the appellant had not been convicted, the High Court lacked jurisdiction to entertain the appeal. The court relied on established case law and statutory interpretation to conclude that interlocutory appeals in criminal matters are not permitted unless expressly provided for by statute. Consequently, the appeal was struck out for want of jurisdiction.
Court Disposition
appeal struck out for want of jurisdiction
Orders
- The appeal is struck out.
- The appellant shall appear before the Principal Magistrates Court in Mbita as scheduled for the trial to proceed in accordance with the law.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 22 OF 2014
BETWEEN
MARK ODHIAMBO OTOM …....…….……………….. APPELLANT
AND
REPUBLIC …….…….……………..……………..…. RESPONDENT
(Being an appeal from the Ruling in Criminal Case No. 1134 of 2012 of the Chief Magistrates Court at Homa Bay, Hon. S. Ongeri dated 9th May 2014)
RULING
This appeal is for striking out. A party who wishes to appeal must point to a statutory right of appeal as was held in the case of Sydney Grant Ralph v R [1960] 1EA 310 where the court stated as follows, “Before there can be any question of or considering the merit of the appeal we must be satisfied that we have jurisdiction to entertain it and for that purpose it is necessary to examine the relevant sections of the Criminal Procedure Code. This court has no inherent power to exercise jurisdiction where no right of appeal is provided and the right of appeal in criminal matters in Kenya is governed by the Criminal Procedure Code.”(See also Jonah Toroitich Kiplagat and Others v Republic Eldoret HC Misc. Crim. Appl. No. 14 of 2007 (Unreported)).
The appellant herein was charged with the offence of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act, 2006 and an alternative charge of indecent assault of a child contrary to section 11(1) of the Sexual Offences Act. After hearing of the prosecution case and after submissions on no case to answer under section 210 and 211 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the appellant was acquitted on the main count and put on his defence on the alternative charge. The appellant now appeals against the ruling.
The right of appeal under the Criminal Procedure Code is only given to a person who has been convicted and sentenced under section 347(1)of theAct. There is no right of appeal conferred against the provisional ruling on a submission of a no case to answer such as that made under section 211 of the Act and now appealed against.
In Thomas Gilbert Cholmondeleyv RCA Criminal Appeal No. 116 of 2007 [2008]eKLR, the Court of Appeal expressed it view on interlocutory appeals in criminal matters as follows, “In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal.”
In the circumstances, the appeal is struck out. The appellant shall appear before the Principal Magistrates Court in Mbita as scheduled for the trial to proceed in accordance with the law.
DATED and DELIVERED at HOMA BAY this 24th day of July 2014.
D.S. MAJANJA
JUDGE
Mr Nyauke, instructed by Nyauke and Company Advocates for the appellant.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of the Director of Public Prosecutions for the respondent.