[2017] KEHC 942 (KLR)
The court found that although there is no specific statutory provision for abatement of criminal revision proceedings upon the death of a party, section 361(7) of the Criminal Procedure Code treats such proceedings as appellate proceedings. Section 360 provides for abatement of appeals on death of the appellant. In...
Source-derived case information.
- Citation
- [2017] KEHC 942 (KLR)
- Parties
- Applicant: Mohammed Ali Abdalla; Respondent: Mary Njeri Mohammed
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 136 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Abatement Due to Death of Respondent
- Outcome
- Revisional proceedings marked as abated due to death of respondent.
- Legal Topics
- Abatement of Proceedings, Revision Jurisdiction, Death of Party, Inherent Powers of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mohammed Ali Abdalla
Applicant
Mary Njeri Mohammed
Respondent
Procedural Posture
Criminal Revision / Ruling on Abatement Due to Death of Respondent
Legal Issues
- 1 Whether revisional proceedings abate upon the death of the respondent.
- 2 Whether the court has inherent power to mark criminal revision proceedings as abated in the absence of explicit statutory provision.
Ratio Decidendi
The court found that although there is no specific statutory provision for abatement of criminal revision proceedings upon the death of a party, section 361(7) of the Criminal Procedure Code treats such proceedings as appellate proceedings. Section 360 provides for abatement of appeals on death of the appellant. In the absence of explicit provision for revision, the court exercised its inherent powers to mark the proceedings as abated, holding that it would serve no purpose to proceed where the respondent is deceased and courts do not grant orders in vain. The court also recommended legislative amendment to clarify abatement in such circumstances.
Court Disposition
Revisional proceedings marked as abated due to death of respondent.
Orders
- The instant revisional proceedings are hereby marked as having abated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL REVISION NO. 136 OF 2016
[From the original order of acquittal in Criminal Case No. 37 of 2013 in the Chief Magistrate Court at Embu, R. v. Mary Njeri Mohammed]
MOHAMMED ALI ABDALLA……………APPLICANT
VERSUS
MARY NJERI MOHAMMED……………RESPONDENT
RULING AND ORDER
1. Today the matter was for delivery of the judgement in revision in the instant revisional proceedings.
2. Counsel for the respondent informed the court that her client is now deceased. And for that reason, the judgement in revision cannot be delivered. The reason being that courts do not grant orders in vain. Mr. Kamunya for the applicant submitted that the court ought to make a decision in the matter, while Ms Mati left the matter for the court to decide.
3. In reaching the decision in this matter, I am guided by section 360 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides for abatement of appeals where the appellant has died during the pendency of an appeal. In the instant revisional proceedings, there is no specific provision that provides for abatement of the revisional proceedings wherein the order of acquittal is being challenged.
4. Furthermore, I am guided in this matter by section 361 (7) of the Criminal Procedure Code which treats revisional proceedings as appellate proceedings.
5. In the circumstances, I find that it is necessary to have recourse to the inherent powers of this court to direct that the instant revisional proceedings are hereby marked as having abated.
6. Furthermore, I recommend that section 360 of the Criminal Procedure Code should be amended by way of expansion to provide for explicit abatement of revisional proceedings wherein one of the parties dies during the pendency of the revisional proceedings.
Ruling delivered in open court at Embu this 24th day of October, 2017 in the presence of Mr. Kamunya for the applicant, Ms Ndorongo for the respondent and Ms Mati for the DPP.
J. M. Bwonwonga
Judge
24/10/2017