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Court of AppealOtherCriminal Appeal 27 of 2016

Kiama & another v Republic (Criminal Appeal 27 of 2016) [2021] KECA 80 (KLR)

Court of Appeal
22 October 2021
1,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a criminal appeal as pointless because the appellants had already been re-sentenced by a lower court on the same conviction.

What this practically means

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Executive summary

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This is a short Order of the Court of Appeal at Nairobi (Nambuye, Karanja and Laibuta, JJA) dated 22nd October 2021 in Criminal Appeal 27 of 2016, an appeal against the judgment of the High Court (M. Mbogholi and L. A. Achode, JJ.) of 8th July 2014 in Nairobi HCCRA No. 2 of 2013. The appeal was heard on 6th October 2021 by way of written submissions orally highlighted, and judgment was reserved for 17th December 2021. Before the court rose, both appellants represented to the court that they had already been re-sentenced by the Chief Magistrate's Court at Kibera in respect of the same conviction. Over the objection of Dr. Khaminwa for the 2nd appellant that the court should proceed to judgment, the court arrested the reserved judgment and directed the Deputy Registrar to verify the information. The verification produced the Kibera proceedings showing that on 16th July 2019 Hon. F. Mutuku, SRM had re-sentenced each applicant to 20 years' imprisonment on the main charge. The court held that the hearing was an exercise in futility, null and void, the appeal having been overtaken by events. It recalled and set aside the order reserving judgment, restored the parties and the appeal to their position before the hearing, and marked the appeal as withdrawn under Rule 68(1) of the Court of Appeal Rules. The merits of the appeal were never determined, and no costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should proceed to judgment where the appellants had already been re-sentenced by the Chief Magistrate's Court at Kibera in respect of the same conviction
  2. 2.What orders should follow in respect of the hearing conducted on 6th October 2021 and the appeal generally

Key legal issues

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01

Effect of re-sentencing of the appellants on a pending appeal against the same conviction and sentence

Holding

The hearing and the reserved judgment were rendered an exercise in futility, null and void, and the appeal was marked as withdrawn under Rule 68(1) of the Court of Appeal Rules

Reasoning

Upon verification, the Deputy Registrar produced proceedings from the Chief Magistrate's Court at Kibera showing the appellants were each re-sentenced to 20 years' imprisonment on 16th July 2019 on the same conviction underlying the appeal. The court concluded the appeal had been overtaken by events, recalled the reserved judgment, restored the parties and the appeal to their pre-hearing position, and marked the appeal withdrawn under Rule 68(1). This was a case-management disposition, not a determination of the merits.

p. 3

Legal principles established

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  • Where an appellant has been re-sentenced by a lower court in respect of the same conviction that is the subject of an appeal, the appeal is overtaken by events and may be marked as withdrawn under Rule 68(1) of the Court of Appeal Rules

Court orders

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  1. 1.The order reserving judgment for delivery on 17th December, 2021 arising from the purported hearing of the appeal conducted on 6th October, 2021 be and is hereby recalled and set aside
  2. 2.The respective parties to the appeal are restored ante to the position they were in before the purported hearing of the appeal commenced on 6th October, 2021
  3. 3.The appeal is also restored ante to the position it was in before the commencement of its purported hearing
  4. 4.The appeal be and is hereby marked as withdrawn under Rule 68(1) of the Court of Appeal Rules

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Nairobi HCCRA No. 2 of 2013
Jurisdiction invoked
Court of Appeal Rules, Rule 68(1) (withdrawal of appeal); appellate jurisdiction over a conviction and sentence

Relief refused

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Rendering of judgment on the appeal as urged by Dr. Khaminwa for the 2nd appellant

The court found that the appellants' re-sentencing rendered the hearing futile and the appeal overtaken by events

p. 2

Costs

No costs order was made; the judgment contains no costs provision

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is our position that the hearing of the appeal was not only an exercise in futility but also null and void and of no consequence having been overtaken by events as at the time the futile hearing exercise was undertaken
p. 3Appeal overtaken by events - re-sentencing below
The appeal is also restored ante to the position it was in before the commencement of its purported hearing
p. 4Restoration of parties and appeal to pre-hearing position
the appeal herein be and is hereby marked as withdrawn under Rule 68(1) of the Court of Appeal Rules
p. 4Final order - withdrawal of appeal

Issues in the judgment

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minor

The reproduced Kibera proceedings list the applicants in reverse order to the appeal caption (Stephen Mwendwa Kaloki as 1st applicant, Johnson Mwangi Kiama as 2nd applicant, versus the 1st and 2nd appellants in the appeal), and the resentencing record is dated variously 15th/16th/17th July 2019 in different passages

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, "Kiama & another v Republic (Criminal Appeal 27 of 2016) [2021] KECA 80 (KLR)", Case Analysis (2021). Criminal Appeal 27 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/80/eng@2021-10-22

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