[2013] KEHC 1501 (KLR)
The court found that there was no evidence on record to show that the appellant had been served with notice of the hearing date. In the absence of such service, and with the appellant not present, the court could not ascertain whether the appellant wished to proceed with the appeal. To safeguard the appellant's...
Source-derived case information.
- Citation
- [2013] KEHC 1501 (KLR)
- Parties
- Appellant: Timothy Maina Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 109 of 2013
- Procedural Posture
- Criminal Appeal / Interlocutory Order on Mention for Directions
- Outcome
- Mention for directions; no determination on merits of appeal.
- Judges
- BN Olao
- Legal Topics
- Forgery, Criminal Appeals, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Maina Ndungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Order on Mention for Directions
Legal Issues
- 1 Whether the appellant was properly served with notice of the hearing date for the appeal.
- 2 Whether the appeal should proceed in the absence of the appellant.
Ratio Decidendi
The court found that there was no evidence on record to show that the appellant had been served with notice of the hearing date. In the absence of such service, and with the appellant not present, the court could not ascertain whether the appellant wished to proceed with the appeal. To safeguard the appellant's right to be heard and to ensure due process, the court directed that the appellant be served with notice of the next mention date through the Attorney General's office. The matter was adjourned for mention before another judge for further orders.
Court Disposition
Mention for directions; no determination on merits of appeal.
Orders
- The appellant to be served by the Attorney General’s office to appear on 12th November 2013 for mention before Lady Justice Githua for further orders.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CRIMINAL APPEAL NO. 109 OF 2013
TIMOTHY MAINA NDUNGU ....................................................... APPELLANT
VERSUS
REPUBLIC .....................................................................................RESPONDENT
(APPEAL ARISING FROM THE JUDGMENT OF THE PRINCIPAL MAGISTRATE’S COURT AT BARICHO BY S. JALANG’O – CRIMINAL CASE NO. 449 OF 2012 ON 24TH MAY 2013)
ORDER
The appellant was convicted for the offence of forgery contrary to Section 349 of the Penal Code and was convicted and sentenced to pay a fine of Ksh. 150,000/= or serve two (2) years imprisonment on 24th May 2013. The record shows that he filed this appeal against conviction and sentence on 28th May 2013 but on 4th June 2013, he paid Ksh. 147,920 as fine vide Court fine receipts No. 2592663 and was released from prison.
When this appeal came up for hearing before me today, he was absent. It is not clear if he was aware that the appeal was coming up today. The record does not indicate that he was served. In the circumstance, this Court is not in a position to know whether the appellant wishes to proceed with the appeal or not.
I therefore direct that the appellant be served by the Attorney General’s office to appear on 12th November 2013 when this appeal shall be mentioned before Lady Justice Githua for further orders.
B.N. OLAO
JUDGE
15TH OCTOBER, 2013
This order has been made in open Court this 15th day of October, 2013.
Ms Kambanga State Counsel present.
B.N. OLAO
JUDGE
15TH OCTOBER, 2013