INNOCENT MADARAKA ONSONGO & another v REPUBLIC [2006] KECA 26 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a second appeal may be lodged after withdrawal of the first appeal
It is not permissible; the withdrawn appeal can only be revived by restoration under Rule 67(3), which requires notice of withdrawal induced by fraud or mistake and the interest of justice.
Rule 67(1) deems an appeal withdrawn to have been dismissed, and Rule 67(3) provides the sole route back - restoration by leave where the notice of withdrawal was induced by fraud or mistake and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.
Whether the court had jurisdiction to extend time and validate the Notices of Appeal filed on 7th November 2006
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would ipso facto validate Criminal Appeal No. 253 of 2006, a second appeal against orders already the subject of a withdrawn appeal, perpetuating an illegality.
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 But because the earlier appeal (No. 76 of 2003) against the same orders was withdrawn, granting the application would permit a competently impermissible second appeal, an exercise of jurisdiction the court does not have.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.
Legal principles established
#- 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of Appeal Rules may not file a second appeal against the same orders; the only remedy is an application to restore the withdrawn appeal under Rule 67(3) on grounds of fraud or mistake and in the interest of justice.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
#- 1.The application was dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.