[2015] KEHC 8424 (KLR)
The court held that the appeal was incompetent because the appellant was not a person convicted as required by section 347 of the Criminal Procedure Code. The right of appeal in criminal matters from subordinate courts is limited to convicted persons, and not to interlocutory orders such as the one declining an...
Source-derived case information.
- Citation
- [2015] KEHC 8424 (KLR)
- Parties
- Appellant: Martin Aloo Arunga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 138 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Preliminary Objection to Admissibility of Witness Testimony
- Outcome
- appeal struck out as incompetent
- Judges
- DAS Majanja
- Legal Topics
- Right to Fair Trial, Admissibility of Evidence, Appeal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Aloo Arunga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Preliminary Objection to Admissibility of Witness Testimony
Legal Issues
- 1 Whether an appeal lies against an interlocutory order declining an objection to witness testimony in a criminal trial.
- 2 Whether failure to supply witness statements in advance violates the accused's right to a fair trial under Article 50 of the Constitution.
Ratio Decidendi
The court held that the appeal was incompetent because the appellant was not a person convicted as required by section 347 of the Criminal Procedure Code. The right of appeal in criminal matters from subordinate courts is limited to convicted persons, and not to interlocutory orders such as the one declining an objection to witness testimony. While the appellant's complaint regarding the right to evidence in advance and adequate time to prepare a defence is recognized under Article 50 of the Constitution, the appropriate remedy is for the trial court to ensure compliance with these rights, not for the High Court to entertain an appeal at this stage. Consequently, the appeal was struck out...
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 138 OF 2014
BETWEEN
MARTIN ALOO ARUNGA …………………………………………………………………. APPELLANT
AND
REPUBLIC ……………………………………………………………………………………. RESPONDENT
(Being an appeal from an order of Hon. B. K. Rugut, RM dated 18th November 2014 in Ndhiwa Principal Magistrates Court Criminal Case No. 334 of 2014)
RULING
This is an appeal against an order made on 18th November 2014 wherein the learned magistrate declined to uphold an objection by counsel for the accused. Counsel for the accused objected to the testimony of a witness, PW4, on the ground that he had not been supplied with witness statements earlier.
Under section 347 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) a right of appeal is only conferred upon, “a person convicted on a trial held by a subordinate court of the first or second class……” The appellant is not a person convicted hence the appeal does not lie. This appeal is therefore incompetent and is struck out.
The appellant’s complaint is that he has been ambushed with evidence and there is likelihood of breach of Article 50(c)and(I) of the Constitution which entitle the accused to evidence in advance and sufficient time to prepare for the defence. The proper remedy in such cases is for the trial court to ensure that the accused has the evidence is advance and is given sufficient time to study it and prepare his defence.
However, in light of the position I have taken, nothing further can be said.
DATED and DELIVERED at HOMA BAY this 10th day of March 2015.
D.S. MAJANJA
JUDGE
Mr Kisera, instructed by Omonde Kisera and Company Advocates for the appellant.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.