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Court of AppealDismissedNairobi Criminal Appeal Number 167 of 2014 (reinstatement application)

Waminila & another v Republic (Criminal Application E040 of 2023) [2025] KECA 1166 (KLR)

Court of Appeal
20 June 2025
710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to restore a criminal appeal the applicants had deliberately withdrawn years earlier, warning that forum shopping amounts to abuse of process.

What this practically means

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Executive summary

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By a motion dated 8th November 2023, the applicants sought reinstatement of Nairobi Criminal Appeal Number 167 of 2014, which they had withdrawn on 21st January 2020, together with leave to appeal out of time and deeming of an amended memorandum of appeal. They explained that the withdrawal was made to pursue resentencing following the Supreme Court's Muruatetu decision. Their first appeal had been dismissed by Achode and Mbogoli, JJ; a magistrate resentenced them to 70 years each in March 2021; and two subsequent High Court revision applications were dismissed, by Nzioka, J in May 2023 and by Kimondo, J. The applicants claimed they had 'inadvertently' filed a duplicate revision application. At the hearing, their advocates did not appear, the State did not oppose the motion, and no written submissions were filed. The Court confined itself to the reinstatement prayer, holding that under Rule 70(3) of the Court of Appeal Rules restoration requires proof that the withdrawal was induced by fraud or mistake and that the interests of justice require the appeal to be heard. Finding no fraud or mistake, the Court characterised the applicants' successive attempts to find a favourable forum as a fishing expedition and an abuse of process, declined to exercise its discretion in their favour, and dismissed the motion in its entirety on 20th June 2025. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the withdrawal of Criminal Appeal No 167 of 2014 was induced by fraud or mistake so as to warrant restoration under Rule 70(3) of the Court of Appeal Rules
  2. 2.Whether the interests of justice require that the withdrawn appeal be reinstated

Key legal issues

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01

Whether the applicants satisfied the Rule 70(3) test for restoration of a withdrawn appeal

Holding

The applicants failed to demonstrate that the withdrawal was induced by fraud or mistake; having withdrawn their appeal to pursue resentencing and then litigated unsuccessfully in multiple forums, they could not show that the interests of justice required reinstatement.

Reasoning

Rule 70(3) confers a discretion to restore a withdrawn appeal only where the notice of withdrawal was induced by fraud or mistake and the interests of justice require the appeal be heard. The applicants withdrew deliberately to pursue resentencing under Muruatetu, then sought revision twice in the High Court, being dismissed both times. Their return to the Court of Appeal was characterised as forum shopping and abuse of process, justifying refusal of the discretion.

p. 2
02

Scope of the prayers properly before the Court

Holding

Only the prayer for reinstatement was properly before the Court; the prayers for leave to appeal out of time and deeming of the amended memorandum were not properly raised.

Reasoning

The motion contained several prayers, but the Court confined itself to the reinstatement prayer, noting that the applicants themselves appreciated this at the hearing. The other prayers, including out-of-time filing, fell outside what the Court was prepared to determine on the motion.

p. 2

Legal principles established

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  • An appeal withdrawn under Rule 70(1) may only be restored where the withdrawal was induced by fraud or mistake and the interests of justice require the appeal to be heard; resort to successive forums after an unsuccessful withdrawal is an abuse of process that will not be condoned.

Court orders

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  1. 1.Dismissal of the motion dated 8th November 2023 in its entirety

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court
Nairobi High Court Criminal Appeal Numbers 1364 of 1995 and 149 of 1996
Jurisdiction invoked
Rule 70(3) of the Court of Appeal Rules (discretion to restore a withdrawn appeal)

Relief refused

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Reinstatement of Nairobi Criminal Appeal Number 167 of 2014 withdrawn on 21st January 2020

Nothing on record suggests the withdrawal was induced by fraud or mistake; the applicants' conduct amounted to abuse of process

p. 2

Leave to file an appeal out of time

Not properly before the Court; only the reinstatement prayer was properly raised

p. 2

That the annexed amended memorandum of appeal be deemed as duly filed

Not properly before the Court; the motion failed in its entirety

p. 2

Costs

No costs order recorded in the judgment

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.

An appeal which has been withdrawn under sub rule (1) may be restored by leave of the Court on the application of the appellant if the Court is satisfied that the notice of withdrawal was induced by fraud or mistake and that the interests of justice require that the appeal be heard.
p. 2Rule 70(3) test for restoration of withdrawn appeal
We think that the applicants have all along been on a fishing expedition for a favorable forum and having been unsuccessful, they resorted to come back to this Court. Such conduct is a clear example of abuse of process which cannot be condoned by this Court.
p. 2Forum shopping as abuse of process
The motion is, therefore, devoid of merit. It accordingly fails and is dismissed in entirety.
p. 2Final orders - dismissal

Issues in the judgment

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minor

The judgment states the second revision application (Nairobi Miscellaneous Criminal Application Number E240 of 2022) was filed 'Subsequently' to the dismissal of Criminal Revision Number E268 of 2021 on 5th May 2023, yet its number carries the year 2022, suggesting it was filed earlier - an internal chronological inconsistency.

minor

The second applicant is referred to but never named in the judgment; only the 1st applicant, Fred Wafula Waminila, is identified.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Waminila & another v Republic (Criminal Application E040 of 2023) [2025] KECA 1166 (KLR)", Case Analysis (2025). Nairobi Criminal Appeal Number 167 of 2014 (reinstatement application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1166/eng@2025-06-20

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