James Gichuhi Wanjema Alias Chui v Republic [2014] KECA 482 (KLR)

Court of Appeal of Kenya

4 July 2014

M. K. Koome DMD. K. Musinga OOOtieno Odek

855 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that a criminal appeal cannot be dismissed just because the appellant or their lawyer fails to show up for the hearing.

What this practically means

Executive summary

The appellant was convicted by the Senior Resident Magistrate's Court at Kajiado of malicious damage to property contrary to Section 339(1) of the Penal Code and fined Ksh 200,000, with one year imprisonment in default. His first appeal to the High Court at Machakos was fixed for hearing before Makhandia J. on 17th November 2011. Counsel holding brief for the appellant's advocate sought an adjournment, citing an urgent matter served the previous day. The Judge declined the adjournment and, on the State's application, dismissed the appeal for want of prosecution in the absence of the appellant. The appellant then appealed to the Court of Appeal. Before that Court, counsel argued that under Sections 353 and 354 of the Criminal Procedure Code an appellant's presence at the hearing of an admitted appeal is not mandatory, relying on Taro v Republic, which held that the Code provides no mechanism for dismissing a criminal appeal for non-attendance. The respondent, through a Senior Assistant Director of Public Prosecutions, conceded the appeal. The Court of Appeal agreed, holding that once an appeal is admitted the Judge's only options were to adjourn or to consider the merits; the dismissal for non-attendance was an error of law. The appeal was allowed, the High Court's order of 17th November 2011 was set aside, and the appellant's Criminal Appeal No. 143 of 2009 was restored to the Register for fresh hearing on a priority basis. No costs order was recorded.

Key legal issues

Whether a first appeal to the High Court may be dismissed for non-attendance of the appellant or his advocate

Holding

No. Sections 353 and 354 of the Criminal Procedure Code do not permit dismissal of a criminal appeal for non-attendance; the court's options are to adjourn or to hear the appeal in the appellant's absence.

Reasoning

The court adopted its earlier decision in Taro v Republic, holding that the Criminal Procedure Code contains no provision for dismissal of a criminal appeal for non-attendance by the appellant or his advocate. Once an appeal is admitted, it must be heard; where counsel fails to attend, the superior court may adjourn or proceed to consider the merits, but may not dismiss the appeal for want of prosecution. The High Court Judge therefore erred in law.

p. 2

Legal principles established

Once a criminal appeal is admitted for hearing, the attendance of the appellant or his counsel is not mandatory and there is no provision for dismissal of such an appeal for non-attendance; the High Court must either adjourn or hear and determine the appeal on its merits.

Court orders

1.The order of the High Court dated 17th November 2011 dismissing the appellant's appeal is set aside
2.The appellant's Criminal Appeal No. 143 of 2009 is restored on the Register for fresh hearing according to the law on priority basis

Authorities

Legislation

Penal CodeSection 339(1)
Criminal Procedure CodeSection 353
Criminal Procedure CodeSection 354

Cases cited (1)

Taro v Republic
[2005] eKLR

On appeal from: High Court of Kenya at Machakos; H. C. Cr. Appeal No. 143 of 2009
Jurisdiction invoked: First appellate jurisdiction under the Criminal Procedure Code (appeal against the High Court's dismissal of a criminal appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "James Gichuhi Wanjema Alias Chui v Republic [2014] KECA 482 (KLR)", Case Analysis (2014). Criminal Appeal No 413 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/482/eng@2014-07-04

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