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Court of AppealDismissedCriminal Appeal No. 345 of 2011· [2015] KECA 60 (KLR)

Gabriel Ngunyangi Banice v Republic [2015] KECA 60 (KLR)

Court of Appeal
30 June 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaSKS. Gatembu Kairu
167 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a criminal appeal because the appellant neither filed the required documents nor showed up to court, showing appeals can die from inaction.

What this practically means

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Executive summary

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This is a brief procedural ruling of the Court of Appeal at Kisumu dismissing a criminal appeal for want of prosecution under Rule 71(4) of the Court of Appeal Rules. The appeal, brought by Gabriel Ngunyangi Banice against the Republic, was an appeal from a judgment of the High Court of Kenya at Kakamega (Lenaola, J.) dated 3rd October 2011 in H.C. Cr.A. No. 279 of 1995. When the appeal last came up for hearing on 23rd March 2015, Mr. Ogesa, appearing for the appellant, obtained an adjournment to file a memorandum of appeal. No memorandum was ever filed. On 30th June 2015 neither the appellant nor his advocate attended court. The court, coram Maraga, Musinga and Gatembu, JJ.A., concluded that the appellant had lost interest in the appeal and dismissed it under Rule 71(4) of the Court of Appeal Rules. The judgment contains no determination of the merits, no discussion of the evidence or the decision below, no citation of authorities, and no costs order. Its only significance for practice is as an instance of the court exercising its power to dismiss an appeal where a appellant, having been given time to file a memorandum of appeal, fails to do so and does not appear. The High Court decision therefore stands undisturbed on the merits; nothing in this ruling affects its correctness.

Key legal issues

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01

Whether the appellant's non-attendance and failure to file a memorandum of appeal warranted dismissal of the appeal

Holding

The appeal was dismissed for want of prosecution under Rule 71(4) of the Court of Appeal Rules, the court inferring loss of interest from the appellant's inaction.

Reasoning

The appeal had previously come up for hearing on 23rd March 2015, when counsel for the appellant obtained an adjournment specifically to file a memorandum of appeal. No memorandum was filed thereafter. On the hearing date neither the appellant nor his advocate appeared. The court treated this combination of non-filing and non-attendance as demonstrating that the appellant had lost interest in the appeal and invoked Rule 71(4) to dismiss it.

p. 1

Legal principles established

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  • An appeal in which the appellant has obtained an adjournment to file a memorandum of appeal but fails to file it and whose counsel does not attend may be dismissed for want of prosecution under Rule 71(4) of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal is dismissed under Rule 71(4) of the Court of Appeal Rules on account of the appellant's loss of interest and non-attendance

Authorities

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Legislation

  • Court of Appeal RulesRule 71(4)
On appeal from
High Court of Kenya at Kakamega
H.C. Cr.A. No. 279 of 1995
Jurisdiction invoked
Rule 71(4) of the Court of Appeal Rules (dismissal for want of prosecution / loss of interest in the appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gabriel Ngunyangi Banice v Republic [2015] KECA 60 (KLR)", Case Analysis (2015). Criminal Appeal No. 345 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/60/eng@2015-06-30

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