ADVOKS GLOBAL · KENYA
The Court of Appeal Rules
73. Appearance at hearing and dismissal for non-appearance
Edition: 2022-12-31 · In force
73. Appearance at hearing and dismissal for non-appearance
(1)The appellant and the respondent shall be entitled to be present at the hearing of the appeal:Provided that an appellant or respondent who is in prison, other than an appellant under sentence of death not represented by an advocate, shall, unless in any particular case the Court otherwise directs, be so entitled only on terms of paying the expenses of the appellant’s transport and that of his or her escort to and from the Court.(2)Where an appellant is represented by advocate or has lodged written submissions under rule 68 or is in prison, it shall not be necessary for the appellant to attend personally the hearing of the appeal, unless the Court shall order his or her attendance:Provided that if an appellant is on bail, the appellant shall attend the hearing of the appeal or, with the leave of the Registrar, shall, before the time of hearing, attend the superior court at the place where the bail was executed and submit himself or herself to the order of such court pending disposal of the appeal.(3)Where an appellant is in prison and has stated that he or she does not intend to appear at the hearing of the appeal, the appeal shall be heard in the appellant’s absence, unless the Court orders the appellant’s attendance.(4)Subject to subrule (3), if, on the day fixed for the hearing of the appeal the appellant does not appear in person or by advocate and has not lodged a statement under rule 66, the appeal may be dismissed or may be heard in the appellant’s absence:Provided that where an appeal has been dismissed, the Court may restore it for hearing if it is satisfied that the appellant was prevented by any sufficient cause from appearing when the appeal was called for hearing.(5)The cost of transport to and from the Court of an appellant who is in prison and that of the appellant’s escort shall be borne out of the funds of the Court where—(a)The appellant is under sentence of death and desires to attend hearing of his or her appeal; or(b)the Court has ordered the appellant’s attendance under sub- rule (2) or subrule (3).(6)If, on the day fixed for the hearing of an appeal, the appellant fails to appear in person or by advocate, and it appears to the court that the appellant is no longer in custody and cannot be traced, or cannot be traced without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable, the Court may, if it appears that no injustice will be done thereby, order that the appeal shall abate:Provided that in such a case the appellant may apply to the court to restore the appeal for hearing and the Court may, if the ends of justice so require, restore the appeal for hearing.