[1993] KECA 66 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal because the grounds raised went beyond the weight of evidence or excessiveness of sentence, including issues about the propriety of the plea. The summary rejection was therefore without jurisdiction. Furthermore, the...
Source-derived case information.
- Citation
- [1993] KECA 66 (KLR)
- Parties
- Appellant: Ayuaya; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 60 of 1993
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of First Appeal
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released forthwith unless otherwise lawfully held
- Legal Topics
- Plea Taking, Summary Rejection of Appeal, Appellate Jurisdiction, Dangerous Drugs Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ayuaya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of First Appeal
Legal Issues
- 1 Whether the High Court was competent to summarily reject the appellant's appeal under section 352(2) of the Criminal Procedure Code.
- 2 Whether the plea of guilty entered at the trial court was unequivocal and properly taken.
- 3 Whether the conviction and sentence based on the plea should stand.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal because the grounds raised went beyond the weight of evidence or excessiveness of sentence, including issues about the propriety of the plea. The summary rejection was therefore without jurisdiction. Furthermore, the plea of guilty entered at the trial court was defective as the facts were not narrated or put to the appellant, making the plea equivocal and invalid. Consequently, the conviction and sentence based on such a plea could not stand. The Court of Appeal quashed the conviction, set aside the sentence, and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released forthwith unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Gicheru, Akiwumi & Tunoi JJ A)
CRIMINAL APPEAL NO 60 OF 1993
AYUAYA…………..........….…APPELLANT
VERSUS
REPUBLIC……..........…….RESPONDENT
(Appeal from the Judgement of the High Court at Kisumu
(Mango J) in HCCC No.162 of 1992 delivered on June 28,1993)
Dated and Delivered at Kisumu this 26th Day of November, 1993
JUDGMENT
On the 21st June, 1993 the Resident Magistrate at Nyando (Mr Kiarie) convicted the appellant on his own plea of guilty on the offence of being in possession of cannabis sativa(bhang) contrary to section 10 (e) as read with section 18 (2) of the Dangerous Drugs Act Cap 245 of the Laws of Kenya and sentenced him to 12 months’ imprisonment. His appeal to the High Court of Kenya at Kisumu was summarily rejected on 28thJune 1993 by Mango, J purportedly under section 352 (2) of the Criminal Procedure Code. Against that summary rejection he has preferred an appeal to this Court.
The High Court’s jurisdiction to dismiss an appeal summarily under the aforementioned section arises only when, in the opinion of the first appellate judge, the evidence before the trial court leaves no reasonable doubt as to the appellant’s guilt, and that the appeal is manifestly frivolous, or without substance. See the case of George Nguraiya and Another v RepublicCriminal Appeal No 28 of 1992 (unreported). But once a petition of appeal goes beyond the conviction being against the weight of the evidence or the sentence being excessive that Court in its appellate jurisdiction cases to have jurisdiction under section 352 (2) of the Criminal Procedure Code.
In the petition of appeal to the High Court, the appellant put forward three grounds of appeal which were not confined to the appellant’s conviction being against the weight of the evidence or the sentence being excessive. Indeed, some of them concerned the first appellate judge’s failure to detect defects in taking of the plea in the trial Magistrate’s Court and that the purported plea of guilty was equivocal.
In our view, the High Court in its appellate jurisdiction was not competent to deal with the appellant’s appeal summarily. That appeal’s summary rejection was therefore wrong. Accordingly we allow the appellant’s appeal to this court, set aside the orders of the High Court summarily rejecting his appeal to that Court.
Under section 3(2) of the Appellate Jurisdiction Act Cap 9 of the Laws of Kenya, we will dispose of this appeal once and for all.
The plea as it stood in the trial Magistrate’s Court was defective in that the facts were never narrated to that court nor were they put to the appellant. In the circumstances the plea should not have been construed as being unequivocal admission of guilt of the offence charged.
We would allow this appeal. We quash the conviction and set aside the sentence of imprisonment and order that the appellant shall be entitled to his liberty fourthwith unless otherwise lawfully held.
Dated and Delivered at Kisumu this 26th day of November, 1993
J.E. GICHERU
………………………….
JUDGE OF APPEAL
A.K. AKIWUMI
………………………….
JUDGE OF APPEAL
P.K.TUNOI
………………………….
JUDGE OF APPEAL