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Court of AppealDismissedCriminal Appeal (as referenced in submissions, respondent's filing numbered E087 of 2023; memorandum of appeal number not stated in judgment)· [2023] KECA 1561 (KLR)

Muindi v Republic (Criminal Appeal E088 of 2023) [2023] KECA 1561 (KLR)

Court of Appeal of Kenya

8 December 2023

ASAsike-Makhandia ALAli-Aroni JMJ. Mativo

640 words in judgment

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The bottom line

Kenya's Court of Appeal dismissed a criminal appeal outright because the appellant's lawyer never filed the required memorandum of appeal — procedure mattered more than the merits.

What this practically means

Executive summary

The appellant was convicted in the Magistrate's Court at Kilungu in Criminal Case No. 54 of 2020 of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, with an alternative count of committing an indecent act with a child, and was sentenced to ten years' imprisonment. His first appeal to the High Court at Makueni in Criminal Appeal No. 104 of 2021 was dismissed by Dulu, J. on 5th October 2022. On second appeal to the Court of Appeal at Nairobi, the respondent's counsel, Ms Matiru, pointed out that the appellant had never served a memorandum of appeal, and that the grounds of appeal were not available; her written submissions of 16th October 2023 repeated these objections. The Court, per a single judgment of the full bench of Asike-Makhandia, Ali-Aroni and Mativo, JJA, invoked Rule 66 of the Court of Appeal Rules, 2022, which requires lodgement and service of a memorandum of appeal, and provides under sub-rule (5) that where no memorandum is lodged in time the Court may dismiss the appeal. Holding that the omission rendered the appeal incompetent and fit for dismissal, the Court noted it might have been lenient had the appellant acted in person, but he was advocate-represented and counsel had not sought extension of time to cure the defect. The appeal was dismissed on 8th December 2023 without consideration of the merits. No costs order was made and no substantive issues on conviction or sentence were determined.

Key legal issues

Competency of an appeal filed without a memorandum of appeal under Rule 66 of the Court of Appeal Rules, 2022

Holding

The appeal was incompetent and was dismissed under Rule 66(5); the Court indicated it might have been lenient had the appellant been acting in person, but he was represented by an advocate who did not seek extension of time

Reasoning

Rule 66(1) obliges an appellant to lodge a memorandum of appeal within fourteen days of service of the record of appeal, and Rule 66(3) requires it to be served on the respondent. The respondent's counsel confirmed that no memorandum was served and that the grounds of appeal were unavailable. Under Rule 66(5), where no memorandum is lodged in time the Court may dismiss the appeal or set it down for hearing. Given counsel's failure even to apply for extension of time, dismissal was the appropriate course.

p. 2

Legal principles established

Failure to lodge a memorandum of appeal within the prescribed time under Rule 66 of the Court of Appeal Rules, 2022 renders an appeal incompetent and liable to dismissal under Rule 66(5), particularly where the appellant is legally represented and has not sought extension of time

Court orders

1.The appeal is dismissed for failure to lodge a memorandum of appeal, rendering it incompetent under Rule 66(5) of the Court of Appeal Rules, 2022

Authorities

Legislation

Court of Appeal Rules, 2022Rule 66
Sexual Offences ActSection 9(1) as read with Section 9(2)
Sexual Offences ActSection 11(1)

On appeal from: High Court of Kenya at Makueni; Criminal Appeal No. 104 of 2021
Jurisdiction invoked: Second appellate jurisdiction under the Court of Appeal Rules, 2022 (Rule 66); the judgment does not state the constitutional provision invoked

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Muindi v Republic (Criminal Appeal E088 of 2023) [2023] KECA 1561 (KLR)", Case Analysis (2023). Criminal Appeal (as referenced in submissions, respondent's filing numbered E087 of 2023; memorandum of appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1561/eng@2023-12-08

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