[2013] KEHC 907 (KLR)
The court held that the release of the appellant from prison on Presidential Amnesty does not result in the abatement of his appeal. Section 360 of the Criminal Procedure Code is explicit that appeals to the High Court abate only upon the death of the appellant. The court further noted that there was no evidence...
Source-derived case information.
- Citation
- [2013] KEHC 907 (KLR)
- Parties
- Appellant: Vincent Shamalla Moi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 155 of 2012
- Procedural Posture
- Criminal Appeal / Interlocutory Ruling on Hearing of Appeal
- Outcome
- Interlocutory orders issued; appeal not determined on merits.
- Legal Topics
- Criminal Appeals, Abatement of Appeal, Presidential Amnesty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Shamalla Moi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Ruling on Hearing of Appeal
Legal Issues
- 1 Does the release of a prisoner on Presidential Amnesty abate a pending criminal appeal?
- 2 Was proper notice of hearing served on the appellant after his release?
Ratio Decidendi
The court held that the release of the appellant from prison on Presidential Amnesty does not result in the abatement of his appeal. Section 360 of the Criminal Procedure Code is explicit that appeals to the High Court abate only upon the death of the appellant. The court further noted that there was no evidence that the appellant had been served with a hearing notice for the appeal. Consequently, the court ordered that a fresh hearing date be fixed and a hearing notice be issued to the appellant to ensure due process is followed.
Court Disposition
Interlocutory orders issued; appeal not determined on merits.
Orders
- Deputy Registrar to fix a fresh hearing date for the appeal.
- Deputy Registrar to issue a hearing notice to the appellant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 155 OF 2012
(An appeal against both conviction and sentence of the Chief Magistrate’s court at Kakamega in Criminal Case No. 748 of 2012 delivered on 26th June, 2012 [S. M. SHITUBI, CM])
VINCENT SHAMALLA MOI ………………........…………. APPLICANT
VERSUS
REPUBLIC ……………………………………………… RESPONDENT
RULING
This appeal came up for hearing on 15/10/2013. However, the learned Prosecuting Counsel Ms Opiyo in formed the court that the appellant had been released from prison on Presidential Amnesty on 12th December, 2012 and thus he was not present in court.
Section 360 of the Criminal Procedure Code does not recognize the release of a prisoner as abatement of the appeal. Appeals to the High Court except for sentence of a fine abate only on the death of the appellant.
From the record, it is not clear whether any effort was made by the Deputy Registrar to serve the appellant with a hearing notice for the appeal. From the charge sheet he comes from Shinyalu, Muranda Location.
I therefore order that the Deputy Registrar fixes a fresh hearing date for the appeal, and issue a hearing notice to the appellant.
Those are the orders of the court.
Dated and delivered at Kakamega this 21st day of November, 2013
George Dulu
J U D G E