Ronald Aloo Augo v Republic [2014] KEHC 8835 (KLR)

IN THE HIGH COURT AT HOMA BAY

CRIMINAL APPEAL NO. 102 OF 2014

BETWEEN

RONALD ALOO AUGO …..…………………………..…......………. APPELLANT

AND

REPUBLIC …………………………………………………...…… RESPONDENT

(Being an appeal from the original ruling and order in Inquest No. 1 of 2010 at the Principal Magistrates Court at Oyugis by Hon. S. N. Makila, RM, dated 19th October 2012)

RULING

1. This appeal arises from an inquest conducted to inquire into the death of PHILIP OTIENO ODHIAMBO (‘deceased’).  After hearing the witnesses, the learned magistrate found that the death of the deceased was caused by commission of an offence by RONALD ALOO AUGO (“the appellant”).  She ordered that that the appellant be arrested and charged with manslaughter contrary to section 202 of the Penal Code (Chapter 63 of the Laws of Kenya).

2. The appellant now appeals against the findings and order of the subordinate court.  It is trite law that a right of appeal must be granted by statute and in the absence of such a statutory right, the court has no jurisdiction (see Munene v Republic (No. 2) [1978] KLR 105 and Owners of the Motor Vessel Lillian ‘S’ v Caltex Oil Kenya Ltd [1989] KLR 1).

3. Appeals in criminal matters are provided for generally under the Criminal Procedure Code (Chapter 75 of the Laws of Kenya). Part XI thereof deals with appeals from the subordinate court to the High Court.  The relevant sections provide as follows:

Appeals to the High Court

Save as is in this part provided –

a. A person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court.

b. Repealed

348. No appeal on plea of guilty, nor petty cases

No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.

348A.Right of appeal against acquittal, order of refusal or order of dismissal

When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Director of Public Prosecutions may Appeal to the High Court from the acquittal or order on a matter of law.

4. Inquests are conducted pursuant to the provisions of Part XII of the Criminal Procedure Act and no right of appeal is provided for thereat.  An order made in an inquest does not fall within the provisions of Part XI of the Criminal Procedure Code which I have outlined above nor is the appellant herein a person convicted within the meaning of section 347 of the Act.

5. This appeal is therefore incompetent because it is an appeal against a finding and order in an inquest and the appellant is not a person convicted. It must therefore be struck out and it is hereby struck out.

DATED and DELIVERED at HOMA BAY this 24th day of November 2014.

D.S. MAJANJA

JUDGE