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Court of AppealOtherCriminal Appeal No. 239 of 2009

Hezekiel Osiro Osiro v Republic [2014] KECA 32 (KLR)

Court of Appeal of Kenya
31 July 2014
OOOnyango OtienoAZAzangalalaKAKantai
240 words in judgment
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The bottom line

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Kenya's Court of Appeal closed a prisoner's appeal because he had served his sentence, been released, and could not be traced to receive the hearing notice.

What this practically means

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Executive summary

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This was a short procedural ruling of the Court of Appeal at Kisumu in a criminal appeal brought by Hezekiel Osiro Osiro against the Republic. The appeal lay from a judgment of the High Court of Kenya at Kisii (Musinga, J.) dated 22nd July 2009 in H.C.CR.A. No. 59 of 2007. When the appeal was called out for hearing, the appellant was absent. The Assistant Director of Public Prosecutions, Mr. Abele, informed the Court that the Prisons Department had reported the appellant was no longer in prison, having apparently served the seven-year term of imprisonment imposed on 13th April 2007. Because the appellant had been released and his address was unknown, the Court considered that effecting service of the hearing notice upon him would not be practical. In those circumstances, invoking Rule 71(6) of the Court of Appeal Rules, the Court marked the appeal as having abated. These were the orders of the whole Court, delivered at Kisumu on 31st July 2014 by Onyango Otieno, Azangalala and Kantai, JJ.A. No substantive issues were determined, no authorities were cited, and no costs order was made; the decision below was not disturbed and the appeal was neither allowed nor dismissed but abated.

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 abate where the appellant, having served his seven-year sentence, is no longer in prison and cannot be served with a hearing notice

Key legal issues

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01

Abatement of a criminal appeal where the appellant is no longer in custody

Holding

The Court marked the appeal as abated under Rule 71(6) because the appellant had served his sentence, was out of prison, and could not be served with the hearing notice.

Reasoning

The appellant was sentenced to seven years' imprisonment on 13th April 2007 and, per the Prisons Department as reported by the Assistant Director of Public Prosecutions, was no longer in custody. Having served the sentence, his address was unknown, making service of the hearing notice impracticable. The Court therefore invoked Rule 71(6) of the Court of Appeal Rules as the appropriate procedural course and made the order as the order of the whole Court.

p. 1

Legal principles established

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  • An appeal abates under Rule 71(6) of the Court of Appeal Rules where the appellant, having served the sentence and been released, cannot be traced and served with a hearing notice.

Court orders

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  1. 1.The appeal marked as having abated pursuant to Rule 71(6) of the Court of Appeal Rules

The bench

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

OO
majority
AZ
majority
KA
majority
On appeal from
High Court of Kenya at Kisii
H.C.CR.A. No. 59 of 2007
Jurisdiction invoked
Rule 71(6) of the Court of Appeal Rules

Relief refused

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Prosecution of the appeal by the absent appellant

The appellant had served his sentence and was out of prison; his address was unknown so service of the hearing notice could not be effected

p. 1

Costs

No costs order was made in the judgment.

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 the circumstances, what commends itself to us and which we hereby do is to mark the appeal as having abated pursuant to Rule 71 (6) of the Court of Appeal Rules.
p. 1Final orders - abatement of appeal
It would appear he has served the sentence and hence he is out of prison and to get him for purposes of service upon him of the hearing notice may not be easy as his address is not known.
p. 1Factual basis for abatement

Issues in the judgment

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minor

The judgment records the appellant as having been sentenced on 13th April 2007, yet the appeal is from a High Court judgment dated 22nd July 2009 in H.C.CR.A. No. 59 of 2007; the sentencing date appears inconsistent with the appellate chronology.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Hezekiel Osiro Osiro v Republic [2014] KECA 32 (KLR)", Case Analysis (2014). Criminal Appeal No. 239 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/32/eng@2014-07-31

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