[2025] KEHC 3458 (KLR)
The court determined that proceeding to judgment in the absence of the respondents, without clear evidence of proper service, would be procedurally improper and risk a miscarriage of justice. The judge emphasized the necessity of ensuring that the respondents are served with all relevant papers and notices, either...
Source-derived case information.
- Citation
- [2025] KEHC 3458 (KLR)
- Parties
- Appellant: Republic; Respondent: Philemon Kirui; Respondent: Samuel Nyaga; Respondent: Josephat Ojweke
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E001 of 2023
- Procedural Posture
- Criminal Appeal / Pre Judgment; Ruling on Service and Directions
- Outcome
- Mention date allocated for service and directions; judgment deferred.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Procedure, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Philemon Kirui
Respondent
Samuel Nyaga
Respondent
Josephat Ojweke
Respondent
Procedural Posture
Criminal Appeal / Pre Judgment; Ruling on Service and Directions
Legal Issues
- 1 Whether the appeals can proceed in the absence of the respondents.
- 2 Whether proper service of hearing notices was effected on the respondents.
- 3 Whether the trial court conducted a single or separate trials for the respondents.
Ratio Decidendi
The court determined that proceeding to judgment in the absence of the respondents, without clear evidence of proper service, would be procedurally improper and risk a miscarriage of justice. The judge emphasized the necessity of ensuring that the respondents are served with all relevant papers and notices, either personally or through their advocates, before the appeal can be heard and determined. The court drew from prior experience where proceeding without respondents led to subsequent challenges and applications to set aside judgments. To uphold the right to a fair hearing and due process, the court refrained from writing the judgment and instead directed that the respondents be...
Court Disposition
Mention date allocated for service and directions; judgment deferred.
Orders
- Respondents to be served with notice of mention date and relevant appeal papers by the State.
- State to file an affidavit of service confirming service on the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
Republic v Kirui & 2 others (Criminal Appeal E001, E004 & E005 of 2023 (Consolidated)) [2025] KEHC 3458 (KLR) (21 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3458 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Appeal E001, E004 & E005 of 2023 (Consolidated)
WM Musyoka, J
March 21, 2025
Between
Republic
Appellant
and
Philemon Kirui
1st Respondent
Samuel Nyaga
2nd Respondent
Josephat Ojweke
3rd Respondent
(Appeals from acquittals in rulings by Hon. PA Olengo, Senior Principal Magistrate, SPM, in Busia CMCCRCs Nos. 1265, 1217 and 1266 of 2023, of 26th April 2021, 3rd May 2021 and 30th April 2021, respectively)
Ruling
1. These appeals were initiated by the State against acquittals of the 3 respondents. The 3 had been charged separately, and it would appear that their cases were consolidated. There is still confusion, though, as they appear to have been acquitted in separate rulings.
2. Directions were taken, for filing of written submissions, sometime in 2023, and the appellant indicates it filed its written submissions.
3. There has been considerable delay in moving the appeals, before the 3 were brought together. But as indicated above, there is still a puzzle on the nature of the proceedings conducted by the trial court, in terms of whether the trial court conducted 1 or separate trials.
4. I allocated a date for judgment on 31st May 2024, for 7th June 2024, but when I settled to write the judgement, I detected gaps, which I addressed in the ruling that I delivered on 7th June 2024. I allocated 18th October 2024, for judgement, but the judgement could still not be prepared, as the record of appeal was not complete. On 4th December 2024, I was informed that the record of appeal was now proper, and I allocated 7th March 2025, as the date for judgement, which I then pushed to 14th March 2025, as I was not to sit on 7th March 2025, on account of official commitments elsewhere. I was not able to prepare the judgement by 14th March 2025, due to pressure of work, and I put off delivery of the judgement to 21st March 2025.
5. When I settled to write the judgement herein, for delivery on 21st March 2025, I established, from the record, that these proceedings have been conducted so far in the absence of the respondents. Mr. Okutta made 2 appearances and disappeared thereafter. I cannot tell, from the record, whether he had been served with notices for the subsequent appearances.
6. I have refrained from writing the judgement, to pave way for the correction of that anomaly. In another criminal appeal, by the State, the court proceeded to judgement, after it was informed, by the State that it had no contact with the respondents, and did not know their whereabouts. However, when the judgement came out favourable to the State, it moved out quickly to seek to apprehend the respondent, to have him apprehended for sentencing purposes. He is now in court seeking review or setting aside of that judgement. I would not like to go that way in this matter.
7. For abundance of caution, the respondents herein shall have to be served with the relevant papers, whether personally or through their Advocates, for the purposes of the hearing of the appeal. The State has a long hand, and should be able to find them, wherever they could be.
8. I shall allocate it a mention date. Let the respondents be served, by the State, with a notice of the mention date, and an affidavit of service shall be filed. The purpose of the mention shall be to determine whether the respondents shall be filing written submissions to the appeal, and to bring light into the proceedings, by clarifying the nature of the proceedings that the trail court conducted, as indicated above. Thereafter, I should allocate a date for judgement. Mention shall happen on 31st March 2025. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, THIS 21ST DAY OF MARCH 2025. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Tony Onanda, instructed by the Director of Public Prosecutions, for the appellant.Mr. Wycliffe Okutta, instructed by Ouma-Okutta & Associates, Advocates for the 2nd respondent.