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Court of AppealOtherCriminal Appeal No. 62 of 2002

PWANI MOHAMED vs REPUBLIC [2003] KECA 125 (KLR)

Court of Appeal
21 January 2003
194 words in judgment
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The bottom line

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The Court of Appeal postponed Pwani Mohamed's criminal appeal because key documents were missing from the appeal file and lawyers needed time to review them.

What this practically means

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Executive summary

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This document is not a judgment on the merits of Criminal Appeal No. 62 of 2002 but a short procedural ruling of the Court of Appeal at Mombasa, made and delivered on 21 January 2003 by a bench comprising Chunga CJ, Tunoi JA and Owuor JA. The appeal was brought by Pwani Mohamed against the Republic and lay from the judgment of the High Court of Kenya at Mombasa (Mr. Justice Osiemo and Khaminwa, Commissioners of Assize) dated 23 October 2001 in H.C. Criminal Appeal No. 83 of 1999. When the appeal came up before the Court of Appeal, Mr. Ngombo, counsel for the appellant, applied for an adjournment. He explained that copies of the submissions relied upon by the appellant in the superior court had not been included in the record of the Court of Appeal and had only just been supplied, so that both counsel required time to study them. The Court accepted this as a valid reason, exercised its discretion in favour of the adjournment, took the appeal out of the day's hearing list and ordered that it be fixed for hearing in the next session. No substantive ground of appeal was argued or determined; no authority or statutory provision is cited; and no order as to costs was made. The decision of the High Court was not disturbed in any way, and the ruling says nothing about the merits of the appeal. Its only operative effect is procedural: the appeal remains pending and awaits allocation to a hearing session once the record is complete. For practitioners, it illustrates that the Court of Appeal treats the omission of documents relied on below from the appellate record, and their late supply to counsel, as a valid basis for adjourning rather than proceeding with the hearing.

Questions the Court framed

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

  1. 1.Whether the appellant's request for an adjournment, founded on the fact that copies of the submissions relied upon in the superior court were not part of the record of the Court and had only just been supplied to counsel, should be granted.

Key legal issues

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01

Whether the appeal should be adjourned because the submissions relied upon in the superior court were not made part of the record and had just been given to counsel.

Holding

Yes. The Court found the omission of the submissions from the record, and their late supply to the parties, to be a valid reason for adjournment, took the appeal out of the hearing list and ordered it fixed for hearing in the next session.

Reasoning

Counsel for the appellant, Mr. Ngombo, sought an adjournment because copies of the submissions relied upon by the appellant in the superior court were never included in the record of the Court of Appeal and had only just been handed over, leaving both counsel requiring time to study them. The Court accepted this as a valid reason, exercised its discretion in favour of the adjournment, took the appeal out of the day's hearing list and directed that it be fixed for hearing in the next session. No substantive issue in the appeal was argued or decided.

p. 2

Legal principles established

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  • Where material documents relied on in the court below (such as submissions) have been omitted from the appellate record and have only just been supplied to counsel, the Court of Appeal may, on that ground, adjourn the hearing, take the appeal out of the hearing list and refix it for the next session.

Court orders

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  1. 1.Adjournment of the hearing granted on the application of the appellant's counsel.
  2. 2.The appeal taken out of that day's hearing list.
  3. 3.The appeal to be fixed for hearing in the next session.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR. APPEAL NO. 83 OF 1999
Jurisdiction invoked
No constitutional or statutory provision is invoked on the face of the ruling; the Court of Appeal dealt with the matter as Criminal Appeal No. 62 of 2002, an appeal from the judgment of the High Court at Mombasa in H.C.CR. Appeal No. 83 of 1999.

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.

We are satisfied that this is a valid reason for us to take out this appeal from today's hearing list and order that the same be fixed for hearing in the next session.
p. 2Final orders - adjournment granted; appeal taken out of the hearing list and refixed for the next session
Mr. Ngombo, counsel for the appellant, has requested for an adjournment on the ground that copies of submission relied upon by the appellant in the superior court were not made part of the record of this Court and have just been given to them.
p. 2Ground for adjournment - submissions omitted from the appellate record and only recently supplied to counsel
In that regard, both counsel require time study the same.
p. 2Both counsel needed time to study the late-supplied submissions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "PWANI MOHAMED vs REPUBLIC [2003] KECA 125 (KLR)", Case Analysis (2003). Criminal Appeal No. 62 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/125/eng@2003-01-21

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