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Court of AppealOtherCriminal Appeal No. 50 of 2002

Oloo Tinega & another v Republic [2002] KECA 79 (KLR)

Court of Appeal
10 June 2002
BCB. ChungaALA.A. LakhaEOE. Owuor
175 words in judgment
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The bottom line

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Kenya's Court of Appeal adjourned a criminal appeal because the defendants' lawyer missed the hearing, protecting their right to legal representation.

What this practically means

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Executive summary

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This record is not a substantive judgment but a short procedural order of the Court of Appeal at Kisumu made on 10 June 2002 by Chunga CJ, Lakha JA and Owuor JA in Criminal Appeal No. 50 of 2002, in which Oloo Tinega and Evans Lucas Maiko appeal against the judgment of Wambiliyanga J delivered at Kisii on 20 June 2001 in H.C. Cr. Appeal No. 124 of 2001. When the appeal came up, the appellants' advocate, though on record, was absent from court. The record does not disclose what the learned State Counsel said, but in view of those representations the court expressed itself satisfied that the two appellants would benefit from the services of their advocate. It therefore took the appeal out of that session and ordered that it be listed for hearing in the next session. No issue was framed or determined, no ground of appeal was considered, the judgment of the High Court was neither affirmed nor disturbed, and no costs order was made. The order is interlocutory case management protecting the appellants' right to legal representation; it lays down no binding rule of law and creates no precedent on the merits. The appeal itself remains pending before the Court of Appeal. Practitioners should cite it, if at all, only as an illustration of the court's practice of accommodating an absent advocate, and not for any proposition of law.

Questions the Court framed

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

  1. 1.Whether the appeal should proceed at that session in the absence of the appellants' advocate, or be taken out of the session and relisted.

Key legal issues

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01

Whether the appeal should be heard at that session in the absence of the appellants' advocate.

Holding

No. The court took the appeal out of the session and ordered it listed for hearing in the next session, being satisfied that the appellants would benefit from the services of their advocate.

Reasoning

The record discloses no argument on any ground of appeal. The only matter before the full bench was the absence of defence counsel although the appellants were represented. Acting on what the learned State Counsel said (not recorded), the court concluded that the appellants would benefit from their advocate's services and adjourned by taking the appeal out of the session. This is interlocutory case management, not a determination of the appeal: nothing was decided on the merits and the High Court judgment stands undisturbed.

p. 2

Legal principles established

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    Court orders

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    1. 1.The appeal was taken out of the session of the Court of Appeal at Kisumu in which it stood listed.
    2. 2.The appeal was to be listed for hearing in the next session.

    The bench

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

    BC
    majority
    AL
    majority
    EO
    majority
    On appeal from
    High Court of Kenya at Kisii
    H.C. Cr. Appeal No. 124 of 2001
    Jurisdiction invoked
    Not stated in the record. The matter is a criminal appeal from the High Court at Kisii to the Court of Appeal, but no constitutional or statutory provision conferring jurisdiction is cited in the order.

    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.

    In that regard, we will take out the appeal from this session and order that it be listed for hearing in the next session.
    p. 2Disposition - appeal taken out of the session and relisted for the next session
    In view of what the learned State Counsel says, we are satisfied that this is a matter in which the two appellants would benefit from the services of their advocate.
    p. 2Basis for adjournment - appellants would benefit from their advocate's services
    Although the two appellants have a counsel representing them, he is not in Court today.
    p. 2Absence of defence counsel on the hearing date

    Issues in the judgment

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    minor

    The record is a one-page interlocutory 'ORDER OF THE COURT' taking the appeal out of the session, not a substantive judgment; it contains no grounds of appeal, no framed issues, no merits determination and no costs order, so no ratio or binding proposition can be extracted from it.

    minor

    The representations made by learned State Counsel that prompted the adjournment are not recorded, so the basis for the court's satisfaction cannot be determined from the record.

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Cite this brief

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    Cite this brief

    Caselaw, "Oloo Tinega & another v Republic [2002] KECA 79 (KLR)", Case Analysis (2002). Criminal Appeal No. 50 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/79/eng@2002-06-10

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