Muindi v Republic [2023] KECA 1561 (KLR)

Muindi v Republic (Criminal Appeal E088 of 2023) [2023] KECA 1561 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1561 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Criminal Appeal E088 of 2023

MSA Makhandia, A Ali-Aroni & JM Mativo, JJA

December 8, 2023

Between

Onesmus Mulinge Muindi

Appellant

and

Republic

Respondent

(An appeal from the judgment of the High Court of Kenya at Makueni (Dulu, J.) dated 5th October 2022 in HCCRA No. E104 of 2021 Criminal Revision Application E014 of 2021 )

Judgment

1. Onesmus Mulinge Muindi (the appellant), was charged, tried and convicted in Criminal Case No. 54 of 2020 at the Magistrate’s Court at Kilungu for the offence of attempted defilement contrary to Section 9 (1) as read with Section 9 (2) of the Sexual Offences Act. The particulars of the offence were that on 3rd October 2020, at the time and place stated in the charge sheet, he intentionally attempted to cause his penis to penetrate the vagina of EM, a child aged 13 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The appellant was upon conviction on the main count sentenced to serve ten years imprisonment.

2. Aggrieved by the said verdict, the appellant appealed to the High Court of Kenya at Makueni in Criminal Appeal No. 104 of 2021 challenging both the conviction and sentence. However, his appeal was dismissed by Dulu, J. on 5th October 2022 on grounds that it lacked merits.

3. During the hearing of this appeal, the respondent’s counsel Ms Matiru pointed out that the appellant never served them with the memorandum of appeal. In addition, in its written submissions dated 16th October 2023, filed in this appeal even though they bear the number E087 of 2023, the respondent’s counsel pointed out that the grounds of appeal were not available.

4. Rule 66 of this Court’s Rules, 2022 stipulates as follows:66. (1)The appellant shall, within fourteen days after service on him or her of the record of appeal, lodge a memorandum of appeal, in five copies, with the Registrar or with the deputy registrar at the place where the appeal is to be heard:Provided that where the memorandum of appeal is lodged with the deputy registrar at the place where the appeal is to be heard, the appellant shall lodge two additional copies with the Registrar within twenty-one days after service on him or her of the record of appeal.(2)The memorandum of appeal lodged under sub- rule (1) shall concisely set forth and under consecutively numbered distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact and, in the case of any other appeal, the points of law, which are alleged to have been wrongly decided.(3)The Registrar or the deputy registrar, as the case may be, shall, as soon as practicable, cause a copy of the memorandum of appeal under sub-rule (1) to be served on the respondent.(4)A memorandum of appeal under sub-rule (1) shall be substantially in Form C as set out in the First Schedule and be signed by or on behalf of the appellant.(5)If no memorandum of appeal is lodged within the prescribed time, the Court may dismiss the appeal or may direct that it be set down for hearing:Provided that where an appeal is dismissed, the appellant, if he or she can show sufficient cause, may apply to the Court to restore it for hearing.

5. In our view, the failure to file a memorandum of appeal renders the appellant’s appeal incompetent and fit for dismissal under sub rule (5) above. We would have been lenient if the appellant was acting in person, but an advocate represented him in this appeal. The advocate did not even bother to move the court as appropriate for extension of time to rectify the omission. Accordingly, we dismiss this appeal.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ASIKE-MAKHANDIA.....................................JUDGE OF APPEALALI-ARONI.....................................JUDGE OF APPEALJ. MATIVO.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR