Aloys Owino Owegi v Republic
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal against an order allowing your criminal appeal to be withdrawn, especially when your advocate clearly stated instructions to withdraw.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lies to the Court of Appeal against a High Court ruling dismissing an application to set aside an order marking an appeal as withdrawn
No such appeal lies. Section 361 of the Criminal Procedure Code confines second appeals to points of law arising from decisions of the High Court on conviction and sentence in its appellate jurisdiction, or decisions in revision. A ruling on withdrawal of an appeal touches neither, so the appeal is incompetent on its face and could be struck out.
The court held that section 379, cited by the State, was inapplicable because the High Court was not exercising original jurisdiction; the correct provision is section 361. Since the impugned ruling was not a decision touching conviction and sentence, nor a revisionary decision under sections 362 and 364, no right of appeal exists. Rules 61 and 64 of the Court of Appeal Rules support this view.
Whether omission of the application decided by the High Court from the record of appeal was fatal
Yes. The appellant failed to include the application that was before the judge, and no explanation was given; the omission alone would have sealed the fate of the appeal and may have been deliberate.
The court emphasized that an appellate court cannot determine the correctness of a decision below without all the material that was before that court. Counsel made no effort to place the application on record even when the omission was pointed out, and given the divergence between submissions at the High Court and before the Court of Appeal, the court wondered whether the omission was not deliberate.
Whether the learned judge erred in refusing to set aside the withdrawal order
No. Counsel for the appellant expressly and unambiguously stated she had instructions to withdraw the appeal; the State consented; the later narrative of limited instructions was implausible and an afterthought, and the judge properly weighed the appellant's indolence.
The record showed counsel applied to withdraw the appeal lucidly and without ambiguity, with no objection from the State. The claim of a bona fide mistake about 'time allocation' was incredible, as time allocation and withdrawal are 'worlds apart'. The judge considered the appellant's prior conduct, repeated adjournments and unreadiness, and properly rejected the reinstatement plea made over two months after withdrawal.
Legal principles established
#- When an appellate court is called upon to determine the correctness of a decision of the court appealed from, all the material that was before that court must be placed in the record
- Second appeals to the Court of Appeal lie only on points of law arising from decisions of the High Court exercising its appellate jurisdiction, predicated on a conviction and sentence, or on a decision in revision deemed to be a decision on appellate jurisdiction; no appeal lies against interlocutory rulings not touching on conviction or sentence
Court orders
#- 1.The appeal is dismissed in entirety
- 2.The ruling of the learned judge dismissing the application to set aside the withdrawal order and to reinstate the appeal is upheld
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Appeal to the Court of Appeal against a High Court ruling dismissing an application to set aside withdrawal of an appeal; competence considered under section 361 of the Criminal Procedure Code and Rules 61 and 64 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aloys Owino Owegi v Republic", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1363/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.