[2004] KEHC 905 (KLR)
The court found that justice required setting aside the proceedings of the appeals and ordering a rehearing because the appellants had not been served with the proceedings and at least one appellant's counsel was absent. The state had conceded the appeal based on a mistaken belief about the date of the offence,...
Source-derived case information.
- Citation
- [2004] KEHC 905 (KLR)
- Parties
- Appellant: Mikoka Jean Claude; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 556 of 2004
- Procedural Posture
- Criminal Appeal / Appeal Rehearing Ordered
- Outcome
- proceedings_set_aside_and_rehearing_ordered
- Legal Topics
- Immigration Offences, Unlawful Presence, Failure to Report Entry, Failure to Register as Alien
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mikoka Jean Claude
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Rehearing Ordered
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive and warranted reduction or substitution with a non-custodial sentence.
- 2 Whether the appellant and respondent were denied the right to be heard due to lack of service of proceedings and absence of counsel.
- 3 Whether the concession by the state was based on a factual error regarding the date of the offence.
Ratio Decidendi
The court found that justice required setting aside the proceedings of the appeals and ordering a rehearing because the appellants had not been served with the proceedings and at least one appellant's counsel was absent. The state had conceded the appeal based on a mistaken belief about the date of the offence, which was actually a typographical error. Therefore, neither party had a proper opportunity to be heard on the merits. The court held that the right to be heard is fundamental and cannot be compromised by procedural errors or mistaken concessions. As a result, the appeals were set aside and ordered to be reheard on the merits with both parties given a fair opportunity to present...
Court Disposition
proceedings_set_aside_and_rehearing_ordered
Orders
- The proceedings of the two appeals are set aside.
- New dates for the hearing of the appeal on the merits to be set on a priority basis.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO. 556 OF 2004
(From original conviction(s) and Sentence(s) in Criminal case No. 1241 of 2004 of the Chief Magistrate’s Court at
MIKOKA JEAN CLAUDE………....….……………………..APPELLANT
VERSUS
REPUBLIC…………………… …………………………....RESPONDENT
J U D G M E N T
The Appellant MIKOKA JEAN CLAUDE was convicted of three counts as follows:
Count 1- BEING UNLAWFULLY PRESENT IN KENYA contrary to Section 4 (1) of theImmigration Act, Count 2 – FAILING TO REPORT ENTRY contrary to Section 3 (1) of the ALIENS RESTRICTION ACT and Count 3 – FAILING TO REGISTER AS AN ALIEN contrary to Section 3 (3)ofALIENS RESTRICTION ACT. He was fined 50,000/- in default one year’s imprisonment in count 1 and 5,000/- in default six months each of counts 2 and 3. He has appealed against the sentence.
In his grounds of Appeal the Appellant urges this court to find the sentence was excessive and to reduce it or give a non-custodial sentence. He also states that he was remorseful for the offence.
In the statement in court, the Appellant submittedWhen the Appeal came up for hearing, both Appellants indicated that they were not prepared to proceed on account of not having been served with the proceedings. The state through learned counsel MR. MAKURA, indicated that it was conceding to the Appeal basically on account of the offence having been committed on 12th April 2002 as per the charge, which, according toMR. MAKURA was way after the Appellants had been arrested. We have since looked at original charge sheet and have confirmed that the date of the offence in the main count ofROBBERY WITH VIOLENCE contrary to Section 296 (2)of Penal Codewas the 7th April 2002. The date 12th April 2002 was a typographical error on the typed proceedings of the trial court record. The basis of concession by the learned state counsel was therefore mistaken.
Consequently we find that justice requires that we set aside the proceedings of these Appeals and have it re-heard afresh for two reasons.
In order to give;
1. The Appellants an opportunity to be heard. They had not been served with the proceedings and at least one of them indicated that they had a counsel who was to argue his appeal and who was absent. They did not make any submission on their Appeals.
2. To give the Respondent an opportunity to be heard on the merits of the Appeal
Accordingly, we set aside the proceedings of these two appeals and order that new dates for the hearing of the Appeal on the merits be set on priority basis. Orders accordingly.
Dated at Nairobi this 17th day of December 2004.
LESIIT F.A. OCHIENG’
JUDGE Ag. JUDGE
Read, signed and delivered in the presence of;
LESIIT F.A. OCHIENG’
JUDGE Ag. JUDGE