Waminila & another v Republic (Criminal Application E040 of 2023) [2025] KECA 1166 (KLR)
The bottom line
#The Court of Appeal refused to restore a criminal appeal the applicants had deliberately withdrawn years earlier, warning that forum shopping amounts to abuse of process.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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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- 2.Whether the interests of justice require that the withdrawn appeal be reinstated
Key legal issues
#Whether the applicants satisfied the Rule 70(3) test for restoration of a withdrawn appeal
The applicants failed to demonstrate that the withdrawal was induced by fraud or mistake; having withdrawn their appeal to pursue resentencing and then litigated unsuccessfully in multiple forums, they could not show that the interests of justice required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.
Rule 70(3) confers a discretion to restore a withdrawn appeal only where the notice of withdrawal was induced by fraud or mistake and the interests of justice require the appeal be heard.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.
Scope of the prayers properly before the Court
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.
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.
Legal principles established
#- An appeal withdrawn under Rule 70(1) may only be restored where the withdrawal was induced by fraud or mistake and the interests of justice require the appeal to be heard; resort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
#- 1.Dismissal of the motion dated 8th November 2023 in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Leave to file an appeal out of time
Not properly before the Court; only the reinstatement prayer was properly raised
That the annexed amended memorandum of appeal be deemed as duly filed
Not properly before the Court; the motion failed in its entirety
Costs
No costs order recorded in the judgment
Quotable passages
#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.
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.
The motion is, therefore, devoid of merit. It accordingly fails and is dismissed in entirety.
Issues in the judgment
#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.
The second applicant is referred to but never named in the judgment; only the 1st applicant, Fred Wafula Waminila, is identified.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cheruiyot v Siror (Environment and Land Case 117 of 2016) [2026] KEELC 1312 (KLR)[2026] KEELC 1312 (KLR)4 Mar 2026applied
- Korwa v Pusikwang & 4 others (Environment and Land Case 61 of 2018) [2025] KEELC 7916 (KLR)[2025] KEELC 7916 (KLR)12 Nov 2025applied
Cite this brief
#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.