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Court of AppealOtherCriminal Appeal No. 83 of 2014

Charles Onyango Odhiambo v Republic [2016] KECA 138 (KLR)

Court of Appeal of Kenya
28 June 2016
David Kenani MaragaD. K. MaragaDMD. K. MusingaSKS. Gatembu Kairu
430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal let an inmate drop his appeal and fixed his prison papers to show he was convicted of possessing an imitation firearm, not robbery.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Maraga, Musinga and Gatembu Kairu, JJ.A.) in a second appeal against conviction and sentence. The appellant had been convicted by the Senior Principal Magistrate's Court at Siaya on 19th December 2012 of possession of an imitation firearm contrary to section 34(1) of the Firearms Act and sentenced to seven years' imprisonment. His first appeal to the High Court at Kisumu (Muchelule and Chemitei, JJ.) was dismissed on 21st January 2014, and he then moved to the Court of Appeal. When the appeal came up for hearing, the appellant, who was unrepresented, sought leave to withdraw the appeal, while asking the Court to order rectification of the committal warrant, which erroneously recorded that he had been convicted of robbery with violence and sentenced to seven years' imprisonment. Prosecution counsel raised no objection to either request. Acting under rule 68(4) of the Court of Appeal Rules, the Court granted leave, marked the appeal as withdrawn, and did not consider the merits. Examining the record, the Court noted the appellant had faced three counts - robbery with violence, rape, and possession of an imitation firearm - and had been acquitted on the first two and convicted only on the third. It accordingly directed that the committal warrant be rectified to reflect the conviction for possession of an imitation firearm contrary to section 34(1) of the Firearms Act. No costs order was made and no substantive appellate determination was reached.

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 should be granted leave to withdraw his second appeal
  2. 2.Whether the committal warrant should be rectified to reflect the offence of conviction

Key legal issues

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01

Withdrawal of an appeal under rule 68(4) of the Court of Appeal Rules

Holding

Where the appellant, unrepresented, seeks leave to withdraw the appeal and the prosecution raises no objection, the Court grants leave and marks the appeal as withdrawn.

Reasoning

The appellant sought to withdraw his second appeal; prosecution counsel had no objection. Acting pursuant to rule 68(4) of the Court of Appeal Rules, the Court granted leave and marked the appeal as withdrawn, without determining the merits of the appeal.

p. 1
02

Rectification of a committal warrant that misstates the offence of conviction

Holding

Where a committal warrant wrongly records the offence for which an accused was convicted, the Court may direct its rectification to reflect the correct conviction.

Reasoning

The committal warrant showed conviction for robbery with violence, yet the record showed the appellant was acquitted of counts 1 (robbery with violence) and 2 (rape) and convicted only of count 3, possession of an imitation firearm under section 34(1) of the Firearms Act. The Court, with the prosecution's consent, directed rectification.

p. 2

Legal principles established

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    Court orders

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    1. 1.Leave granted to the appellant to withdraw the appeal and the appeal marked as withdrawn
    2. 2.Committal warrant rectified to reflect that the appellant was convicted for possession of imitation firearm contrary to section 34(1) of the Firearms Act

    The bench

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

    David Kenani Maraga
    majority
    DM
    majority
    SK
    majority
    On appeal from
    High Court of Kenya at Kisumu
    HCCRC. No. 138 of 2012
    Jurisdiction invoked
    Second appeal to the Court of Appeal under the Court of Appeal Rules (rule 68(4) applied for withdrawal of the appeal)

    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.

    Pursuant to rule 68 (4) of the Court of Appeal Rules, we grant leave to the appellant to withdraw the appeal and hereby proceed to mark the appeal as withdrawn.
    p. 1Withdrawal of appeal
    we direct that the committal warrant be rectified accordingly as to reflect that the appellant was convicted for possession of imitation firearm contrary to section 34 (1) of the Firearms Act. Orders accordingly.
    p. 2Final orders - rectification of committal warrant

    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, "Charles Onyango Odhiambo v Republic [2016] KECA 138 (KLR)", Case Analysis (2016). Criminal Appeal No. 83 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/138/eng@2016-06-28

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