[2021] KEHC 2139 (KLR)
The court held that the right to withdraw an appeal is vested in the appellant and is an integral part of the right to access justice. The existence of a prosecution notice to enhance sentence does not override the appellant's right to withdraw the appeal, especially where the notice is not a formal cross-appeal....
Source-derived case information.
- Citation
- [2021] KEHC 2139 (KLR)
- Parties
- Appellant: Simon Gitiye; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E031 of 2021
- Procedural Posture
- Criminal Appeal / Application for Withdrawal of Appeal Before Judgment
- Outcome
- Appeal withdrawn at the request of the appellant.
- Judges
- CA Otieno
- Legal Topics
- Withdrawal of Appeal, Right to Access Justice, Prosecution Notice to Enhance Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Simon Gitiye
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Withdrawal of Appeal Before Judgment
Legal Issues
- 1 Whether an appellant in a criminal appeal can withdraw the appeal at will before judgment is delivered.
- 2 Whether the existence of a prosecution notice to enhance sentence bars withdrawal of the appeal.
Ratio Decidendi
The court held that the right to withdraw an appeal is vested in the appellant and is an integral part of the right to access justice. The existence of a prosecution notice to enhance sentence does not override the appellant's right to withdraw the appeal, especially where the notice is not a formal cross-appeal. Therefore, the appellant cannot be compelled to proceed with the appeal against his will, and the withdrawal request must be granted. The prosecution's notice to enhance sentence lapses with the withdrawal of the appeal, as it cannot stand independently.
Court Disposition
Appeal withdrawn at the request of the appellant.
Orders
- The appeal is marked as withdrawn.
- The prosecution's notice to enhance sentence is deemed to have lapsed with the withdrawal of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL APPEAL NO. E031 OF 2021
SIMON GITIYE .....APPELLANT
VERSUS
REPUBLIC...........RESPONDENT
RULING
1. When this matter was called out for directions after parties filed submissions, the appellant applied to court to allow him withdraw the appeal.
2. That request was opposed by the respondent prosecutor on the basis that it has resisted the appeal and filed a notice to enhance the sentence together with submissions thereof.
3. The court is therefore asked to determine whether the appellant as a convict serving a sentence can be denied the right to withdraw his appeal and thus compelled to proceed with the same against his wish and will.
4. I understand the law to be that even a criminal appeal like any other private litigation belongs to the party. Here the appeal belongs to the appellant as the convict and that the prosecution has filed a notice to enhance the sentence together with the submissions may not be a reason to force the litigation upon the appellant.
5. I see the right to withdraw any matter from court to be an integral part of the right to access justice and vested in the appellant. Once he decides to withdraw the appeal, nobody, not even the court, has the right to stand on his way and force him to pursue the same, provided the request is made before the judgment is delivered.
6. With such appreciation, I find that nothing would justify the court in denying the appellant his right to terminate the appeal by way of withdrawal. I thus accede to the request and mark this appeal as withdrawn.
7. Having been so withdrawn the fact that there exists in the file a notice to enhance the sentence, which remains a notice and not a cross appeal, the notice goes with the withdrawn appeal as it cannot stand on its own.
8. Let the file be closed.
PATRICK J.O OTIENO
JUDGE
11/11/2021