Kiama & another v Republic (Criminal Appeal 27 of 2016) [2021] KECA 80 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a criminal appeal as pointless because the appellants had already been re-sentenced by a lower court on the same conviction.
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 appeal should proceed to judgment where the appellants had already been re-sentenced by the Chief Magistrate's Court at Kibera in respect of the same conviction
- 2.What orders should follow in respect of the hearing conducted on 6th October 2021 and the appeal generally
Key legal issues
#Effect of re-sentencing of the appellants on a pending appeal against the same conviction and sentence
The hearing and the reserved judgment were rendered an exercise in futility, null and void, and the appeal was marked as withdrawn under Rule 68(1) of the Court of Appeal Rules
Upon verification, the Deputy Registrar produced proceedings from the Chief Magistrate's Court at Kibera showing the appellants were each re-sentenced to 20 years' imprisonment on 16th July 2019 on the same conviction underlying the appeal. The court concluded the appeal had been overtaken by events, recalled the reserved judgment, restored the parties and the appeal to their pre-hearing position, and marked the appeal withdrawn under Rule 68(1). This was a case-management disposition, not a determination of the merits.
Legal principles established
#- Where an appellant has been re-sentenced by a lower court in respect of the same conviction that is the subject of an appeal, the appeal is overtaken by events and may be marked as withdrawn under Rule 68(1) of the Court of Appeal Rules
Court orders
#- 1.The order reserving judgment for delivery on 17th December, 2021 arising from the purported hearing of the appeal conducted on 6th October, 2021 be and is hereby recalled and set aside
- 2.The respective parties to the appeal are restored ante to the position they were in before the purported hearing of the appeal commenced on 6th October, 2021
- 3.The appeal is also restored ante to the position it was in before the commencement of its purported hearing
- 4.The appeal be and is hereby marked as withdrawn under Rule 68(1) of the Court of Appeal Rules
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi HCCRA No. 2 of 2013
- Jurisdiction invoked
- Court of Appeal Rules, Rule 68(1) (withdrawal of appeal); appellate jurisdiction over a conviction and sentence
Relief refused
#Rendering of judgment on the appeal as urged by Dr. Khaminwa for the 2nd appellant
The court found that the appellants' re-sentencing rendered the hearing futile and the appeal overtaken by events
Costs
No costs order was made; the judgment contains no costs provision
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.
it is our position that the hearing of the appeal was not only an exercise in futility but also null and void and of no consequence having been overtaken by events as at the time the futile hearing exercise was undertaken
The appeal is also restored ante to the position it was in before the commencement of its purported hearing
the appeal herein be and is hereby marked as withdrawn under Rule 68(1) of the Court of Appeal Rules
Issues in the judgment
#The reproduced Kibera proceedings list the applicants in reverse order to the appeal caption (Stephen Mwendwa Kaloki as 1st applicant, Johnson Mwangi Kiama as 2nd applicant, versus the 1st and 2nd appellants in the appeal), and the resentencing record is dated variously 15th/16th/17th July 2019 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiama & another v Republic (Criminal Appeal 27 of 2016) [2021] KECA 80 (KLR)", Case Analysis (2021). Criminal Appeal 27 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/80/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.