Benjamin Mbithi Kaveva v Republic [2014] KECA 823 (KLR)

Court of Appeal

10 February 2014

HOH. M. Okwengu ASAsike-Makhandia FSF. Sichale

425 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that a person given free State-funded counsel cannot keep rejecting assigned lawyers—accept one, hire your own, or argue the appeal yourself.

What this practically means

Executive summary

This is a short procedural ruling of the Court of Appeal at Mombasa (Okwengu, Makhandia and Sichale, JJ.A.) in Criminal Appeal No. 337 of 2010, an appeal by Benjamin Mbithi Kaveva against the judgment of the High Court at Mombasa (Azangalala and Odero, JJ.) in H.C.Cr.A. No. 307 of 2006 dated May 2010. The matter came before the court so that counsel, Mr Odhiambo, could show cause why action should not be taken against him for failing to attend court on 20th January 2014. Counsel explained that he had travelled to a funeral in Siaya County and returned late because of travel difficulties. The court accepted the explanation as reflecting social responsibility but cautioned counsel that such an explanation would not be acceptable in future, emphasising that professional obligations cannot be subordinated to personal engagements, particularly where an accused person is in custody. The court further noted that the appellant had rejected a second counsel allocated by the State, indicating that he wished to advise counsel rather than be advised. Holding that a litigant with a right to State-funded counsel cannot pick and choose among State-allocated advocates, the court released Mr Odhiambo from the matter and gave the appellant the choice of instructing his own advocate at his own cost or conducting the appeal in person, with the matter to be listed in the May session. No costs order was made and the substantive appeal remained pending.

Key legal issues

Counsel's non-attendance and professional responsibility

Holding

The court accepted the explanation but cautioned counsel that such explanations would not be acceptable in future, stressing the professional duty owed where an accused is in custody.

Reasoning

Counsel explained non-attendance on 20th January 2014 by reference to travel to a funeral. The court acknowledged that funeral attendance is a social responsibility but held it cannot displace counsel's legal and professional responsibility, especially where the appellant's liberty is at stake. The court issued a caution rather than sanction.

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Right to State-allocated counsel versus an appellant's ability to choose counsel

Holding

The appellant has a right to counsel at State expense but not a right to select or reject successive State-appointed counsel; failing which he must retain his own advocate or conduct the appeal in person.

Reasoning

This was the second counsel allocated by the court that the appellant rejected. The court observed that the appellant sought to advise counsel rather than be advised. It therefore released Mr Odhiambo from the matter and directed the appellant either to instruct his own advocate at his own cost or to proceed in person by the May session.

p. 1

Legal principles established

A litigant allocated State-funded counsel has a right to representation at State expense but cannot pick and choose counsel or dictate how counsel conducts the case.
Personal or social engagements of counsel do not excuse non-attendance in court, particularly where an accused person is in custody.

Court orders

1.The court cautioned Mr Odhiambo that his explanation for non-attendance would not be acceptable in future
2.The appellant was given the choice of identifying his own advocate at his own cost or undertaking his appeal in person
3.Mr Odhiambo was released from the matter
4.The matter to be listed in the May session, by which time the appellant must have instructed his own advocate or be ready to proceed in person

On appeal from: High Court of Kenya at Mombasa; H.C.Cr.A. No. 307 of 2006
Jurisdiction invoked: Appellate jurisdiction over an appeal from the High Court (Criminal Appeal No. 337 of 2010); no specific constitutional or statutory provision is cited in the ruling.

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Benjamin Mbithi Kaveva v Republic [2014] KECA 823 (KLR)", Case Analysis (2014). Criminal Appeal No. 337 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/823/eng@2014-02-10

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