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Court of AppealDismissedCriminal Application No. NAI 8 of 2002 (KSM 8/02)

Abdala Otieno Kitengo v Republic [2002] KECA 171 (KLR)

Court of Appeal
18 June 2002
ROR. S. C. OmoloASA. B. ShahEOE. O. O'Kubasu
208 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot fix a flawed appeal notice by amending it — the document must be right from the start.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Omolo, Shah and O'Kubasu, JJ.A.) dated 18 June 2002 on a criminal application by Abdala Otieno Kitengo. The applicant sought, in substance, to amend his notice of appeal in an intended second appeal against his conviction for handling stolen property contrary to Section 322(2) of the Penal Code. The appeal lay from a judgment of the High Court of Kenya at Kisumu (Kuloba J) dated 21 October 1994 in H.C.CR.A. No. 305 of 1993. The court held that a notice of appeal cannot be amended, so the application as framed was misconceived. The applicant's real complaint was that the High Court Registry was not seriously pursuing his second appeal because it appeared to have lost the court file. The court noted that the file was now available, rendering the practical grievance moot. It declined to make any orders on the application and dismissed it. No costs order was recorded. The decision establishes, as a binding proposition for lower courts and practitioners, that a notice of appeal is not amendable by application. The underlying second appeal's fate is not addressed in this order.

Key legal issues

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01

Whether the Court of Appeal can grant an application to amend a notice of appeal

Holding

The court held that a notice of appeal cannot be amended and declined to make any orders, dismissing the application.

Reasoning

The court characterised the application as, in substance, one to amend a notice of appeal, which is not a permissible procedure. The applicant's real grievance was that his intended second appeal against conviction for handling stolen property contrary to Section 322(2) of the Penal Code was not being pursued because the High Court Registry appeared to have lost the file. Since the file was now available, the court saw no basis to make orders and dismissed the application.

p. 1

Legal principles established

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  • A notice of appeal is not amendable; an applicant cannot cure defects in a notice of appeal by an application to amend it.

Court orders

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  1. 1.The application to amend the notice of appeal was dismissed with no orders made
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 305 of 1993
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over applications relating to appeals from the High Court (criminal appeal)

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, "Abdala Otieno Kitengo v Republic [2002] KECA 171 (KLR)", Case Analysis (2002). Criminal Application No. NAI 8 of 2002 (KSM 8/02). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/171/eng@2002-06-18

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