[2024] KEHC 7509 (KLR)
The court held that the appellant, having already appealed to the High Court and received a judgment, could not file a further appeal before the same court against both the trial court and High Court decisions. The High Court is functus officio after delivering its judgment in the previous appeal and lacks...
Source-derived case information.
- Citation
- [2024] KEHC 7509 (KLR)
- Parties
- Appellant: Emmanuel Samson Okoth; Respondent: State
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E037 of 2023
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed as incompetent and an abuse of process
- Judges
- DO Ogembo
- Legal Topics
- Defilement Offence, Sexual Offences Act, Appeal Procedure, Functus Officio, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Samson Okoth
Appellant
State
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant can appeal against both the trial court and High Court decisions in a single appeal.
- 2 Whether the High Court is functus officio after having determined the previous appeal.
- 3 Whether the present appeal is competent or an abuse of court process.
Ratio Decidendi
The court held that the appellant, having already appealed to the High Court and received a judgment, could not file a further appeal before the same court against both the trial court and High Court decisions. The High Court is functus officio after delivering its judgment in the previous appeal and lacks jurisdiction to entertain a subsequent appeal in the same matter. The present appeal was therefore found to be incompetent and an abuse of the process of the court, warranting its dismissal in entirety.
Court Disposition
appeal dismissed as incompetent and an abuse of process
Orders
- The appeal dated 28/8/2023 is dismissed wholly.
Full Case Text
Judgment text and source record
20 paragraphs
Okoth v State (Criminal Appeal E037 of 2023) [2024] KEHC 7509 (KLR) (20 June 2024) (Judgment)
Neutral citation: [2024] KEHC 7509 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Appeal E037 of 2023
DO Ogembo, J
June 20, 2024
Between
Emmanuel Samson Okoth
Appellant
and
State
Respondent
(Being an appeal against the decision, findings, and orders of the Hon. J.P. Nandi (PM) and Hon. R. E. Aburili in HCCRA No. E025/2022, AT Siaya, Judgment delivered on 22/2/2023)
Judgment
1. The appellant, Emmanuel Samson Okoth has filed this appeal on 7/9/2023. The petition of appeal dated 28/8/2023 raises the following grounds:-1. That the courts erred in law and in fact in not making a finding that the ingredients of defilement were not proved beyond any reasonable doubt.2. That the court erred in law and in fact in not weighing the conflicting evidence in the instant case of that were inconsequential to conviction.3. That the courts erred in law and fact in not making a finding that the minimum mandatory nature of the sentence under Section 8 (2) of the Sexual Offences Act, No. 3 of 2006 is unconstitutional and not warranted on plea/mitigation.4. That the courts erred in law and in fact in not appreciating that in definitive life imprisonment that is equated to the appellant’s natural life is unconstitutional and untenable.5. That the trial court erred in law and in fact in not following the right procedure in appointing the intermediary.6. That the courts erred in law and in fact in disregarding the appellant’s cogent defence.
2. The appellant pleads that his conviction be quashed, sentence set aside and that he be set at liberty. Both sides filed submissions.
3. I have considered the appeal of the appellant. Without hesitation and without going into the merit or otherwise of this appeal or the submissions made on the same, I find it necessary to make the following observations:1. The appellant was first tried and convicted of the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. This was in Bondo PM’s Court, Sexual Offence Case NO. E064/2021. He was sentenced to serve life imprisonment on 3/8/2022. 2.The appellant filed an appeal at Siaya High Court, being Criminal Appeal No. E025 of 2022. In a judgment of the court (Hon. Justice R. E. Aburili), delivered on 22/2/2023, the appeal of the appellant was wholly dismissed.3. In this appeal, the appellant is appealing against both the decisions of the trial court and the High Court sitting on appeal.4. The appellant cannot appeal against both the decisions of the trial court and the High Court in one appeal as filed herein.5. In any case, the High Court having decided on the appeal of the appellant, the High Court is functus officio in this matter and the appellant is barred from filing another appeal before the same court.
4. In the circumstances, this appeal of the applicant dated 28/8/2023 is to say the least, utterly incompetent and an abuse of the process of this court. I dismiss the same wholly. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 20THDAY OF JUNE, 2024. D. O. OGEMBOJUDGE20/6/2024CourtRead out in court in presence of the accused (Kisumu) and Ms. Kerubo for State.