[2002] KEHC 1239 (KLR)
The court found that the present appeal was a duplication of Criminal Appeal No. 97/00, which had already been summarily dismissed by another judge and no further appeal had been lodged against that dismissal. Since both appeals arose from the same facts and grounds, and the earlier appeal had been finalized, the...
Source-derived case information.
- Citation
- [2002] KEHC 1239 (KLR)
- Parties
- Appellant: Pius Mutuku Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 124 of 2000
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_struck_out
- Legal Topics
- Rape Offence, Plea of Guilty, Sentence Duplication, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Mutuku Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the present appeal is competent given the existence and finalization of a prior appeal on the same facts and grounds.
- 2 Whether the sentence imposed should be reduced or ordered to run concurrently with another sentence.
Ratio Decidendi
The court found that the present appeal was a duplication of Criminal Appeal No. 97/00, which had already been summarily dismissed by another judge and no further appeal had been lodged against that dismissal. Since both appeals arose from the same facts and grounds, and the earlier appeal had been finalized, the High Court had no jurisdiction to make any further orders in the duplicate file. The only recourse available to the appellant was to appeal to the Court of Appeal against the summary dismissal of the original appeal. Accordingly, the present appeal was struck out as incompetent.
Court Disposition
appeal_struck_out
Orders
- The appeal is struck out as a duplication of Criminal Appeal No. 97/00.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
APPELLATE SIDE
CRIMINAL APPEAL NO. 124 OF 2000
(From Original Conviction and Sentence in Criminal Case No. 75 of 1998 of the Resident Magistrate’s Court at Makueni, J. K. Kiia Esq. on 14. 3.2000
PIUS MUTUKU MUTISYA ::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC :::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
The appellant herein was charged with the offence of Rape C/s 140 of the Penal Code in the Resident Magistrates court at Makueni vide Criminal Case no. 75/98. The record shows that on 14. 3.2000 the appellant was reminded of a charge in a language not indicated and he admitted the same. The facts were narrated and he accepted the same. He was convicted and then sentenced to seven years imprisonment, hard labour with 4 strokes of the cane.
The appellant has appealed to this court citing 4 grounds of appeal namely that he pleaded guilty to the charge not because of his freewill but to avoid further police torture, that he has lodged the appeal against sentence only and he wishes the same to be released on his mentioned grounds and that the period he was under confinement since arrest should also be considered.
In his mitigation the appellant had indicated that he was 24 years old and unmarried.
In his oral submissions the appellant just stated that he was appealing for reduction of the sentence and that the same to be made to run concurrently with the sentence being subject of the appeal No. 97/00.
The State left the matter to the court. I have considered the circumstances of the offence. Indeed the complainant was raped but she did not suffer any injuries save for the trauma of the ordeal. The appellant is now remorseful. He wants the court to order that the sentence herein to run concurrently with the sentence in H.C.CR.A 97/00.
I called for Criminal Appeal No. 97/00. I have perused the same and find that it arises from the same facts and offence as the one in the present appeal. The appeal therein was filed on 18. 7.00 and it was summarily rejected by my brother Judge on 30. 10. 2000. There was no appeal against that summary dismissal. While the present appeal was filed on 4. 9.00. It was based on the same grounds. It is therefore a duplication of appeal No.97/00. Since appeal No. 97/00 was earlier in time and it has been finalized no other order can be made in this duplicate file varying the orders made in appeal file No. 97/00 by my brother judge.
The best cause to take by the appellant is to appeal to the court of appeal against the summary dismissal of his appeal in appeal No.97/00. If allowed by the Court of Appeal is when the file will be remitted back to the High Court for hearing of appeal No. 97/00 on merit.
For the reasons given this appeal being a duplication of appeal No. 97/00 is struck out.
Dated, read and delivered at Machakos this 16th day of July, 2002.
R. NAMBUYE
JUDGE