[2013] KEHC 2337 (KLR)
The High Court found that it was functus officio in respect of the application for bond pending appeal because the substantive appeal had already been heard and dismissed. The court held that any further application for bond must be made before the Court of Appeal, which now has jurisdiction over the matter....
Source-derived case information.
- Citation
- [2013] KEHC 2337 (KLR)
- Parties
- Appellant: Mataiga Marwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application Nos190 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Bond Pending Appeal After Dismissal of Substantive Appeal
- Outcome
- application struck out
- Judges
- AT Sitati
- Legal Topics
- Robbery With Violence, Bond Pending Appeal, Functus Officio, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mataiga Marwa
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Bond Pending Appeal After Dismissal of Substantive Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant bond pending appeal after the appeal has already been heard and determined.
- 2 Whether the application for bond pending appeal is competent after the court has become functus officio.
Ratio Decidendi
The High Court found that it was functus officio in respect of the application for bond pending appeal because the substantive appeal had already been heard and dismissed. The court held that any further application for bond must be made before the Court of Appeal, which now has jurisdiction over the matter. Consequently, the chamber summons seeking bond pending appeal was struck out as incompetent.
Court Disposition
application struck out
Orders
- The applicant's chamber summons dated 12th June 2012 and filed on 21st June 2012 is struck out.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 190 of 2010 AND
MISC. CRIMINAL APPLICATION NO. 84 OF 2012
MATAIGA MARWA …………………………..……… APPELLANT/APPLICANT
VERSUS
REPUBLIC …………………………………….……………………… PROSECUTOR
(Being an appeal from original conviction and sentence of Hon. J.R. Ndururi, SRM, dated and delivered
on 27th September, 2010 in Kehancha SRM’s Court Criminal Case No. 1347 of 2009)
RULING
The applicant herein, Mataiga Marwa was tried and convicted of the offence of robbery with violence contrary to section 296 (2)of the Penal Code. He was tried by the Senior Resident Magistrate, Mr. J.R. Ndururi, at Kehancha law courts and sentenced to suffer death as by law established.
The applicant’s appeal to this honourable court was heard and dismissed by a 2-Judge Bench vide the judgment delivered on 31st January 2013.
While the appeal was pending the applicant filed the instant Miscellaneous Criminal Application NO.84 of 2012 seeking to be released on bond pending hearing and determination of his appeal. As earlier stated, the appeal was heard and determined on 31st January 2013. The appeal was dismissed for lack of merit.
At the hearing of the application for bond, neither the court nor the Respondent had before them a copy of the judgment in Criminal Appeal No.190 of 2010. Now that the said judgment is before the court’s eyes, the court finds that it is functus officio as far as the instant application is concerned. Any application as to bond ought now to be filed and prosecuted before the Court of Appeal.
In the circumstances, the applicant’s chamber summons dated 12th June 2012 and filed in court on 21st June 2012 be and is hereby struck out
Orders accordingly.
Dated and delivered at Kisii this 14th day of August, 2013
RUTH NEKOYE SITATI
JUDGE
In the presence of:
Present in person for Appellant/Applicant
Mr. Shabola for Respondent
Mr. Bibu - Court Clerk