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Court of AppealDismissedCriminal Application No. E021 of 2022 (Notice of Motion dated October 24, 2022)· [2023] KECA 443 (KLR)

William Tongoyo & 1 other v Republic

Court of Appeal
14 April 2023
2,092 words in judgment
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The bottom line

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The Court of Appeal dismissed two prisoners' bid to have remand time count toward their sentence because they never filed the required Notice of Appeal.

What this practically means

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Executive summary

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The applicants, convicted of stealing by the Narok Chief Magistrate's Court and sentenced to 10 years' imprisonment, had their appeals against conviction dismissed and sentences reduced to 5 years by the High Court at Narok (Criminal Appeals No. 31A, 31B and 31C of 2018). They then sought, in Criminal Application No. 21 of 2020, to have the period spent in remand credited against their sentences under section 333(2) of the Criminal Procedure Code; Gikonyo, J dismissed that application. By a Notice of Motion dated October 24, 2022, the applicants asked the Court of Appeal to interpret the commencement of their sentence, declare that their remand period formed part of it, and order their release. The Republic objected on jurisdictional grounds, contending that leave had not been sought and that no Notice of Appeal was on record. The Court (Sichale, Achode and Korir, JJA) held that under rule 61 of the Court of Appeal Rules, 2022 a Notice of Appeal is the foundational device that institutes an appeal and invokes the Court's jurisdiction under Article 164(3) of the Constitution, and that this remains so even where leave is required under rule 61(4). No Notice of Appeal existed in respect of any of the decisions relied upon. The Court further observed that an application for 'interpretation' of a High Court decision was not traceable to any provision of its Rules, and a substantive appeal should have been pursued. The Court found it had no jurisdiction, held there was no appeal before it, and dismissed the motion. No order as to costs appears in the judgment, and the merits of the remand-period claim were not addressed.

Key legal issues

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01

Whether the Court of Appeal's appellate jurisdiction under Article 164(3) was properly invoked without a Notice of Appeal

Holding

The Court lacked jurisdiction to entertain the application because no Notice of Appeal was lodged in respect of any of the decisions the applicants relied on, notwithstanding the applicants' claim that a Notice of Appeal was on record.

Reasoning

Rule 61 of the Court of Appeal Rules, 2022 requires a notice of appeal in writing to institute an appeal. The Court held that even where leave or a certificate is required, a Notice of Appeal remains a foundational requirement under rule 61(4). The applicants did not tender any Notice of Appeal as an exhibit, so the jurisdiction of the Court was never properly invoked and the Court could not proceed further. Whether leave had been sought could only arise after a Notice of Appeal was confirmed on record.

p. 4
02

Whether an application seeking an 'interpretation' of a High Court decision was a competent mode of invoking the Court's jurisdiction

Holding

The application seeking interpretation of the High Court's decision was not traceable to any provision of the Court of Appeal Rules; the applicants should have pursued a substantive appeal.

Reasoning

The Court observed that although the applicants styled their motion as one for interpretation of the High Court's decision on sentence, no provision of the Court's Rules authorized such an application. The proper course was a substantive appeal instituted by a Notice of Appeal. Consequently, the application would have failed even had a proper Notice of Appeal been on record. The Court therefore dismissed the motion without engaging the merits of the section 333(2) remand-period claim.

p. 4

Legal principles established

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  • A Notice of Appeal is the foundational device that invokes the appellate jurisdiction of the Court; without it the Court is not seized of the matter, and this remains so even where leave to appeal is required.

Court orders

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  1. 1.The Notice of Motion dated October 24, 2022 is dismissed for want of jurisdiction
On appeal from
High Court of Kenya at Narok
Criminal Application No. 21 of 2020
Jurisdiction invoked
Article 164(3) of the Constitution, subject to rules 40, 41 and 61 of the Court of Appeal Rules, 2022 and sections 361(2) and 379(b) of the Criminal Procedure Code

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, "William Tongoyo & 1 other v Republic", Case Analysis (2023). Criminal Application No. E021 of 2022 (Notice of Motion dated October 24, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/443/eng@2023-04-14

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