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Court of AppealDismissedCriminal Application (as yet unnumbered, Kisumu) arising from Criminal Appeal No. 253 of 2006· [2006] KECA 26 (KLR)

INNOCENT MADARAKA ONSONGO & another v REPUBLIC [2006] KECA 26 (KLR)

Court of Appeal of Kenya
22 November 2006
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Once you withdraw an appeal at Kenya's Court of Appeal, you cannot file a fresh one — you can only ask to restore the original.

What this practically means

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Executive summary

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This was an application under Rule 4 of the Court of Appeal Rules by Innocent Madaraka Onsongo and Edward Motuka, who had been convicted of rape and sentenced to nine years' imprisonment by the Chief Magistrate's Court at Kisii. Their sentence appeals to the High Court (Kisii Criminal Appeals Nos. 102 and 103 of 2003) were summarily rejected by Wambilyangah, J. on 7th April 2003. Their first appeal to the Court of Appeal against that rejection (Criminal Appeal No. 76 of 2003) was withdrawn under Rule 67(4) of the Court of Appeal Rules. Deverell, J.A. later granted leave on 16th December 2005 to file a memorandum of appeal out of time, but the Deputy Registrar advised that a criminal appeal is instituted by Notice of Appeal under Rule 58(1), and none had been filed. The applicants then filed fresh Notices of Appeal on 7th November 2006 out of time and without leave, giving rise to Criminal Appeal No. 253 of 2006, and sought validation of those notices. Githinji, J.A. held that a party who has withdrawn an appeal cannot file a second appeal against the same orders; the exclusive remedy is an application under Rule 67(3) to restore the withdrawn appeal on grounds of fraud or mistake and in the interest of justice. Granting the application would perpetuate an illegality and exceed the court's jurisdiction. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether a second appeal may be lodged after withdrawal of the first appeal

Holding

It is not permissible; the withdrawn appeal can only be revived by restoration under Rule 67(3), which requires notice of withdrawal induced by fraud or mistake and the interest of justice.

Reasoning

Rule 67(1) deems an appeal withdrawn to have been dismissed, and Rule 67(3) provides the sole route back - restoration by leave where the notice of withdrawal was induced by fraud or mistake and justice requires the appeal be heard. Here withdrawal was made informally under Rule 67(4). Allowing fresh notices of appeal would circumvent Rule 67 and create a second appeal where none is competent.

p. 3
02

Whether the court had jurisdiction to extend time and validate the Notices of Appeal filed on 7th November 2006

Holding

The court had no jurisdiction; validating the notices would ipso facto validate Criminal Appeal No. 253 of 2006, a second appeal against orders already the subject of a withdrawn appeal, perpetuating an illegality.

Reasoning

By Rule 58(1) of the Court of Appeal Rules a criminal appeal is instituted by Notice of Appeal, so extending time would validate Criminal Appeal No. 253 of 2006. But because the earlier appeal (No. 76 of 2003) against the same orders was withdrawn, granting the application would permit a competently impermissible second appeal, an exercise of jurisdiction the court does not have. The application was therefore incompetent and had to be dismissed.

p. 3

Legal principles established

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  • A party who withdraws an appeal under Rule 67 of the Court of Appeal Rules may not file a second appeal against the same orders; the only remedy is an application to restore the withdrawn appeal under Rule 67(3) on grounds of fraud or mistake and in the interest of justice.
  • An extension of time that would validate a fresh appeal after withdrawal of the original appeal would exceed the court's jurisdiction.

Court orders

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  1. 1.The application was dismissed
  2. 2.Each party to bear their own costs of the application (no orders as to costs)
On appeal from
High Court of Kenya at Kisii
Kisii Criminal Appeal Nos. 102 and 103 of 2003
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "INNOCENT MADARAKA ONSONGO & another v REPUBLIC [2006] KECA 26 (KLR)", Case Analysis (2006). Criminal Application (as yet unnumbered, Kisumu) arising from Criminal Appeal No. 253 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/26/eng@2006-11-22

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