[2013] KEHC 4436 (KLR)
The court held that since the petitioners' criminal appeal was still pending and the issues raised in the constitutional petition were the same as those to be canvassed in the appeal, the petition could not proceed. The appropriate forum for addressing the alleged violations and any relief sought was the pending...
Source-derived case information.
- Citation
- [2013] KEHC 4436 (KLR)
- Parties
- Applicant: Robert Makumi Waweru; Applicant: Evans Makumi Waweru; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 460 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Petition to Strike Out
- Outcome
- petition struck out
- Judges
- DAS Majanja
- Legal Topics
- Right to Fair Trial, Pending Appeal Procedure, Criminal Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Makumi Waweru
Applicant
Evans Makumi Waweru
Applicant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition to Strike Out
Legal Issues
- 1 Whether the petitioners' right to a fair trial was violated.
- 2 Whether the High Court can entertain the petition while the criminal appeal is still pending.
- 3 Whether the petitioners are entitled to an acquittal, retrial, or other reliefs sought in the petition.
Ratio Decidendi
The court held that since the petitioners' criminal appeal was still pending and the issues raised in the constitutional petition were the same as those to be canvassed in the appeal, the petition could not proceed. The appropriate forum for addressing the alleged violations and any relief sought was the pending appeal. The court was therefore constrained to strike out the petition, advising the petitioners' counsel to pursue the matter through the Deputy Registrar of the Criminal Division to expedite the appeal process. The court acknowledged the regrettable delay but emphasized that the constitutional petition was not the proper avenue for redress while the appeal remained unresolved.
Court Disposition
petition struck out
Orders
- The petition is struck out.
- Counsel for the petitioners is advised to follow up the appeal with the Deputy Registrar of the Criminal Division.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Petition 460 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
ROBERT MAKUMI WAWERU......................................1ST PETITIONER
EVANS MAKUMI WAWERU........................................2ND PETITIONER
AND
THE DIRECTOR OF PUBLICPROSECUTIONS...........RESPONDENT
RULING
1. I have considered the petition dated 24th September 2012 together with the supporting documents. The petitioners were convicted of the offence of robbery with violence under section 296(2) of the Penal Code, (Chapter 63 of the Laws of Kenya)in Githunguri SRMCC No. 1916 of 2006nowseek the following orders:
(a)A declaration that the petitioners’ right to a fair trial has been violated.
(b)That the respondent supplies the OB from Ngewa Police Post for 25. 10. 2005
(c)An order that the petitioners be acquitted of the criminal charges in respect of which they were charged at the SRM Court Githunguri.
(d)In the alternative, the petitioners be retried.
2. The petitioners did lodge an appeal from the conviction and sentence to wit; HC Criminal Appeal No. 404 of 2006 and No. 405 of 2006 which were consolidated. The consolidated appeal was heard by Justice Ojwang’ and in a judgment dated 8th June 2008, he declared a mistrial as the appeal ought to have been heard by two judges.
3. According to the proceedings, the appeals were heard on 16th June 2010 by Justices Khaminwa and Warsame and judgment scheduled for 27th September 2010. On that date the judgment was not ready and was rescheduled to 18th October 2010. The records available do not show that judgment was delivered. I am aware, though, that one of the learned Judges on the panel was taken ill and therefore the matter could still be pending.
4. As the issues raised in the petition are really issues to be canvassed in the appeals, this petition cannot proceed on that basis as the appeal is still alive. In the circumstances, I am constrained to strike out the petition. (SeeJulius Kamau Mbugua v RepublicNairobi Criminal Appeal No. 50 of 2008 [2010] eKLR and Methodist Church in Kenya Registered Trustees & Another v Rev. Jeremiah Muku and AnotherCA, Civil Appeal No. 233 of 2008 (Unreported)).
5. Mr. Gitonga, counsel for the petitioners, has raised the issue of inordinate delay and the fact that the petitioners may be transferred to another prison. I agree that this is an unfortunate and regrettable state of affairs, but any application or issue concerning the trial and subsequent conviction must be raised in the attendant appeal.
6. Counsel for the petitioners is advised to follow up the matter with the Deputy Registrar of the Criminal Division as the files are available and take whatever action that is necessary.
7. Orders accordingly.
DATED and DELIVERED at NAIROBI this 4th day of April 2013.
D.S. MAJANJA
JUDGE
Mr Gitonga, instructed by Azania Legal Consultants for the petitioners.
Ms Kahoro, Prosecution Counsel, instructed by the Directorate of Public Prosecutions.