[2017] KEHC 9179 (KLR)
The court found that since the appellant's co-accused had also filed a related appeal (Criminal Appeal No. 78 of 2011) which had not been admitted or dealt with, it would be improper to proceed to judgment in the present appeal. Doing so could result in conflicting findings in matters arising from the same facts....
Source-derived case information.
- Citation
- [2017] KEHC 9179 (KLR)
- Parties
- Appellant: Nixon Odari Semere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 79 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Appeal Before Judgment
- Outcome
- mistrial declared; no judgment delivered; appeals to be consolidated
- Legal Topics
- Appeal Procedure, Consolidation of Appeals, Mistrial, Pending Related Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nixon Odari Semere
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal Before Judgment
Legal Issues
- 1 Whether it is proper to proceed with judgment in an appeal when a related appeal by a co-accused is pending and has not been admitted or determined.
- 2 Whether proceeding with the current appeal risks conflicting findings due to the related pending appeal.
Ratio Decidendi
The court found that since the appellant's co-accused had also filed a related appeal (Criminal Appeal No. 78 of 2011) which had not been admitted or dealt with, it would be improper to proceed to judgment in the present appeal. Doing so could result in conflicting findings in matters arising from the same facts. Therefore, the hearing of the appellant’s appeal was declared a mistrial, and no judgment would be delivered until both appeals are consolidated and heard together.
Court Disposition
mistrial declared; no judgment delivered; appeals to be consolidated
Orders
- No judgment shall be delivered on this appeal until Criminal Appeal No. 78 of 2011 is availed and both appeals are consolidated for hearing and determination.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINA L APPEAL NO. 79 OF 2011
BETWEEN
NIXON ODARI SEMERE……………………………………..APPELLANT
VERSUS
REPUBLIC…………………………..……………………..RESPONDENT
(Being an appeal against both conviction and sentence of the learned trial Magistrate L.O Onyina, SRM dated n13. 05. 2011 in Vihiga P.M. Criminal Case No. 1130 of 2009)
R U L I N G
1. This appeal proceeded before me on 16th March, 2017, after which I reserved judgment for 25th May, 2017. Due to circumstances that were beyond the control of the court, judgment was not ready on the 25th May, 2017. The same was stood over to 13th July, 2017.
2. When I eventually retired to write the judgment, and on careful perusal of the records, I found that the appellant’s co-accused, Stanley Musambi Sakasa also filed Criminal Appeal No. 78 of 2011. From the records Criminal Appeal Number 78 of 2011 has neither been admitted nor dealt with in any way.
3. In the circumstances, it would be imprudent for me to proceed to write and deliver judgment in the present appeal without considering the fact that a related appeal is pending admission, hearing and determination, for to do so is likely to result in conflicting findings in matters whose genesis is one.
4. For the above reason, I declare the hearing of the appellant’s appeal a mistrial and accordingly no judgment shall be delivered on it until the appellant in Criminal Appeal Number 78 of 2011 is availed and the appeals consolidated for hearing and determination.
It is so ordered
Ruling delivered, dated and signed in open court at Kakamega this 13th day of July 2017
RUTH N. SITATI
JUDGE
In the presence of;-
Present in Person………………………………….for appellant
Mr. Ng’etich (present)…………………………………….for state
Polycap………………………………………court assistant