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Court of AppealOtherCriminal Appeal 37 of 1992

Joseph Kipturgot A Towet v Republic [1992] KECA 19 (KLR)

Court of Appeal of Kenya
21 September 1992
JGJ.E. GicheruACA.M. CockarMMM.G. Muli
112 words in judgment
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The bottom line

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When an appellant dies while a Kenyan criminal appeal is pending, the appeal automatically ends without the court ever deciding whether the conviction was correct.

What this practically means

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Executive summary

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This brief order of the Court of Appeal at Nakuru disposes of Criminal Appeal 37 of 1992, an appeal by Joseph Kipturgot A Towet against a conviction and sentence imposed by the High Court (Mr Justice B.K. Tanui) on 27th January 1992 in H.C.CR.C. No. 1 of 1991. The appeal was never heard on its merits. The court received correspondence from the officer-in-charge of G.K. Prison, Kamiti confirming that the appellant died on 19th August 1992 while in custody. Relying on rule 68(1)(a) of the Court of Appeal Rules, the court declared that the appeal had abated. No consideration was given to the merits of the conviction or sentence, no authorities were cited, and no costs order was made. The judgment was delivered on 21st September 1992 by a bench comprising Justices of Appeal J.E. Gicheru, A.M. Cockar and M.G. Muli, with Gicheru JA's name appearing first as the apparent author. The decision establishes nothing beyond the mechanical consequence of an appellant's death: the appeal abates and no adjudication on the underlying criminal liability can occur. Because the appeal abated rather than succeeded or failed, the High Court conviction and sentence remain undisturbed by any determination of this court, and the prior decision is treated as not applicable/not disturbed. The order is short, uncontested and purely procedural, arising from a fact reported after the appeal was lodged.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal abated upon the death of the appellant while in custody

Key legal issues

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01

Effect of the death of an appellant on a pending appeal

Holding

The appeal abates by operation of rule 68(1)(a) of the Court of Appeal Rules

Reasoning

The court relied on correspondence from the officer-in-charge of G.K. Prison, Kamiti confirming the appellant's death on 19th August 1992. No determination of the merits was possible; the only order open to the court was a formal declaration of abatement under the rule.

p. 2

Legal principles established

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  • A criminal appeal abates upon the death of the appellant under rule 68(1)(a) of the Court of Appeal Rules

Court orders

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  1. 1.Declaration that the appeal has abated under rule 68(1)(a) of the Court of Appeal Rules

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority

Wrote the judgment

AC
majority
MM
majority
On appeal from
High Court of Kenya
H.C.CR. C. No 1 of 1991
Jurisdiction invoked
Rule 68(1)(a) of the Rules of this Court (Court of Appeal Rules)

Relief refused

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Determination of the criminal appeal on its merits

The appellant died while the appeal was pending, causing the appeal to abate

p. 2

Costs

No costs order made; the appeal abated

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, under rule 68(1)(a) of the Rules of this Court, this appeal has abated.
p. 2Abatement of appeal on death of appellant
Dated and delivered at Nakuru this 21st day of September, 1992.
p. 2Final orders and delivery

Issues in the judgment

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minor

The judgment is a brief 'Order of the Court' recording abatement; the coram names J.E. Gicheru first (apparently authoring), but no separate judgments or dissents appear

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kipturgot A Towet v Republic [1992] KECA 19 (KLR)", Case Analysis (1992). Criminal Appeal 37 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/19/eng@1992-09-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.