Moses Shivaji Shikah v Republic [2000] KECA 302 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a criminal appeal cannot be decided in a person's absence without proof they were notified, and ordered a rehearing.
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 first appellate court erred in hearing the appellant's first appeal in his absence without ascertaining whether he wished to be present and whether the hearing notice had been served on him
Key legal issues
#Whether hearing a first appeal in the absence of the appellant, without ascertaining service of the hearing notice or the appellant's wish to attend, violates the right to be heard
It does. The court applied the audi alteram partem principle and the decision in Gathega s/o Waweru v R, holding that the first appellate court had a duty to ensure the appellant's presence where his wish to attend was unclear, and that the record showed no ascertainment of service of the hearing notice.
The appellant's petition of appeal contained an ambiguous statement ('I do/do not wish to be present at the hearing of the appeal') which he had not corrected. In those circumstances the court held the appellant actually wished to be present, and that in any event the duty lay on the court to secure his presence. Audi alteram partem is a cardinal principle; no man should stand condemned unheard. The record did not show that service of the hearing notice was ascertained, so the hearing in absentia was irregular.
Legal principles established
#- Where it is not clear whether an appellant wishes to be present at the hearing of his appeal, the court has a bounden duty to ensure the appellant is present; an appeal should not be heard in the absence of the appellant without ascertaining that he has been duly served with the hearing notice.
- The High Court should not hear an appeal in the absence of the appellant and without ascertaining that he has been duly served with the hearing notice.
Court orders
#- 1.The appeal is allowed to the extent that the first appeal is remitted to the superior court for a fresh hearing in the presence of the appellant
- 2.The appeal in the superior court be heard on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.CRM. Case No. 267 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence under the Criminal Procedure Code (appeal from High Court conviction)
Relief refused
#Quashing of the convictions and sentences outright
The court allowed the appeal only to the extent of remitting the first appeal for fresh hearing, rather than determining the merits of the conviction and sentence
Costs
No costs order made 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.
when it is not clear as to whether or not an appellant wishes to be present at the hearing of the appeal the court's bounden duty is to see to it that the appellant is present at the hearing.
Audi Alterman Partem is a cardinal principle of our system of law. No man should stand condemned unheard.
the High Court should not hear an appeal in the absence of the appellant and without ascertaining that he has been duly served with the hearing notice
This appeal is allowed to that extent and we direct that the appeal in the superior court be heard on a priority basis.
Issues in the judgment
#The judgment renders the Latin maxim as 'Audi Alterman Partem', an apparent typographical error for 'audi alteram partem'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Godwin Barasa Barechi v Kenya Trade Network Agency [2020] KEELRC 1355 (KLR)[2020] KEELRC 1355 (KLR)27 Feb 2020
- Edward Mugambi & another v Jason Mathiu Mwongera [2017] KEELC 3416 (KLR)[2017] KEELC 3416 (KLR)13 Mar 2017
- Edward Mugambi & Jacob Kairanya M’Raibuni & Jason Mathiu Mwongera [2017] KEELC 3389 (KLR)[2017] KEELC 3389 (KLR)13 Mar 2017
Cite this brief
#Cite this brief
Caselaw, "Moses Shivaji Shikah v Republic [2000] KECA 302 (KLR)", Case Analysis (2000). Criminal Appeal No. 38 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/302/eng@2000-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.