[2009] KEHC 173 (KLR)
The court found that Section 379(5) of the Criminal Procedure Code does not cover or permit the granting of a stay of proceedings pending appeal. The provision is applicable only to completed appeals and not to interlocutory applications for stay during the pendency of a trial. Consequently, the oral application by...
Source-derived case information.
- Citation
- [2009] KEHC 173 (KLR)
- Parties
- Respondent: Republic; Appellant: Samwel Kipng'eno Birir
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2008
- Procedural Posture
- Oral Application / Ruling on Oral Application for Stay of Proceedings Pending Appeal
- Outcome
- application rejected
- Legal Topics
- Stay of Proceedings, Appeals in Criminal Cases, Application of Section 379 5 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Samwel Kipng'eno Birir
Appellant
Procedural Posture
Oral Application / Ruling on Oral Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether Section 379(5) of the Criminal Procedure Code permits a stay of proceedings pending appeal.
- 2 Whether the oral application for stay of proceedings by the state is tenable under the law.
Ratio Decidendi
The court found that Section 379(5) of the Criminal Procedure Code does not cover or permit the granting of a stay of proceedings pending appeal. The provision is applicable only to completed appeals and not to interlocutory applications for stay during the pendency of a trial. Consequently, the oral application by the state for a stay of proceedings was rejected, and the trial was ordered to proceed.
Court Disposition
application rejected
Orders
- The application for stay of proceedings pending appeal is rejected.
- The trial shall proceed for hearing.
Full Case Text
Judgment text and source record
28 paragraphs
1. Criminal Law
2. Criminal Procedure and Practice.
3. Oral Application for stay of proceeding pending appeal under Section 379(5) of the Criminal Procedure Code.
4. Application opposed.
a) Section 379(5)CPC deals with a completed appeal.
b) Under trial of public interest does not cover this case.
5. Held.
1) That the Section 379 (5) CPC does not cover situation of stay of proceedings pending appeal.
2) Application rejected.
6. Case Law– Nil.
7. Advocate
R.K. Koech state counsel instructed by the Attorney General for the State – present
J.K. Koskei advocate instructed by M/S Koskei & Tegekyon & co. advocates for the accused/appellant – present.
REPUBLIC …………………………………… PROSECUTION
VERSUS
SAMWEL KIPNG’ENO BIRIR ……………………. ACCUSED
RULING
I: Oral application
1. That the state intends to appeal against this court’s orders in rejecting a witness under Section 127 of the Evidence Act and accordingly now seeks orders of stay of proceedings pending appeal. This is the application made by the state.
2. The defendant objects to this application on grounds that Section 379(5) CPC that is being relied on, is not applicable.
II: Findings
3. The application for stay of proceedings is hereby rejected by the court.
4. This trial to accordingly proceed for hearing.
DATEDthis 16th day of December, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
R.K. Koech state counsel instructed by the Attorney General for the State – present
J.K. Koskei advocate instructed by M/S Koskei & Tegekyon & co. advocates for the accused/appellant – present.