[1995] KECA 34 (KLR)
The Court of Appeal found that the High Court erred in summarily rejecting the appellant's appeals because the grounds raised were not limited to those matters that permit summary rejection under section 352(2) of the Criminal Procedure Code. The appellate court set aside the High Court's orders and proceeded to...
Source-derived case information.
- Citation
- [1995] KECA 34 (KLR)
- Parties
- Appellant: Clement Waruru Nyahuro; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 2 & 72 of 1995
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeals by the High Court
- Outcome
- Appeal allowed in part; convictions upheld; sentences ordered to run concurrently; corporal punishment reduced.
- Legal Topics
- Burglary and Stealing, Sentencing Principles, Concurrent Sentences, Summary Rejection of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Waruru Nyahuro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeals by the High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellant's appeals under section 352(2) of the Criminal Procedure Code.
- 2 Whether the sentences imposed should have been ordered to run concurrently or consecutively.
- 3 Whether the convictions based on guilty pleas were proper and unequivocal.
Ratio Decidendi
The Court of Appeal found that the High Court erred in summarily rejecting the appellant's appeals because the grounds raised were not limited to those matters that permit summary rejection under section 352(2) of the Criminal Procedure Code. The appellate court set aside the High Court's orders and proceeded to determine the appeals on their merits. The court held that the appellant's guilty pleas were unequivocal and the convictions were proper. However, the court found that the offences, having been committed within a short period and in the same locality, warranted concurrent rather than consecutive sentences. The court therefore ordered that the prison terms be served concurrently...
Court Disposition
Appeal allowed in part; convictions upheld; sentences ordered to run concurrently; corporal punishment reduced.
Orders
- The orders of the High Court summarily rejecting the appeals are set aside.
- The convictions are upheld as the pleas were unequivocal.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Criminal Appeal 2 & 72 of 1995
CLEMENT WARURU NYAHURO ………………...........................................………………APPELLANT
AND
REPUBLIC ……………………………………………………........................................…..RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. D. M. Rimita) dated 6th June, 1994
IN
H. C. CR. A. NOS. 31 & 32 OF 1994)
*******************************
JUDGMENT OF THE COURT
These two appeals have been consolidated for convenient disposal.
The appellant was convinced on own plea of guilty on the offence of burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code and sentenced to a concurrent 3year's imprisonment on each limb and 12 strokes of the cane. This was in Criminal Case No. 241 of 1994 (Criminal Appeal No. 2 of 1995 herein).
It would appear that so soon thereafter the appellant was again arraigned before the same magistrate on a similar charge of burglary and stealing to which he pleaded guilty and was accordingly sentenced to 2 year's imprisonment on each limb. The jail term were ordered to be served concurrently. The appellant was also ordered to receive 8 strokes of the cane. This latter case was Criminal No. 242 of 1994 (Criminal appeal No. 72 of 1995 herein). The sentences imposed in the second case were ordered to be served consecutively with those already imposed in Criminal Case No. 241 of 1994. His appeals to the High Court of Kenya at Nakuru were summarily rejected under section 352(2) of the Criminal Procedure Code. Against that summary rejection the appellant has preferred these appeals to this court.
It is clear from perusal of the grounds of appeal before the High Court that they were not confined to the two matters under section 352 (2) of the Criminal Procedure Code under which an appeal may be summarily rejected. In our view, the High Court in its appellate jurisdiction erred in dealing with the appellant's appeals by rejecting them summarily. The summary rejection was wrong. Accordingly we allow the appellant's appeals to this court and set aside the orders of the High Court summarily rejecting his appeals to that court.
Under section 3 (2) of the Appellate Jurisdiction Act (Cap 9 of the Laws of Kenya) we will dispose of these appeals once and for all.
As far as the pleas are concerned we are satisfied that they were unequivol and must stand. We shall not therefore interfere with the convictions.
The practice where a person commits more than one offence at the same time in the same transaction is, save in very exceptional circumstances, to impose concurrent sentences. See REX V SAWEDI MUKASA S/O ABDUDDLA ALIGWAISA 13 E. A. C. A. 97. The offences on which the appellant was convicted were a series of offences committed within a space of a month or so and within the same locality. It was therefore preferable to impose concurrent sentences.
We direct that the prison terms shall be served concurrently and the number of strokes are reduced to one on each limb so that the appellant will serve a total sentence of 3 years' imprisonment and receive 4 strokes of the cane. To this limited extent only does this appeal succeed.
Dated and delivered at Nakuru this 28th day of September, 1995.
J. E. GICHERU
…………………….
JUDGE OF APPEAL
P. K. TUNOI
…………………..
JUDGE OF APPEAL
A. B. SHAH
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR