[2016] KECA 334 (KLR)
The Court of Appeal found that the appellant's memorandum of appeal raised grounds that warranted a hearing before the High Court. The summary rejection of the appeal by the High Court, without affording the appellant an opportunity to argue his case, was improper and violated his right to a fair trial under Article...
Source-derived case information.
- Citation
- [2016] KECA 334 (KLR)
- Parties
- Appellant: Elphas Angatia Kangu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 112 of 2014
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of First Appeal by High Court
- Outcome
- Appeal allowed; summary rejection set aside; matter remitted for hearing on merits.
- Judges
- DK Musinga, AK Murgor
- Legal Topics
- Incest Offence, Right to Fair Trial, Summary Rejection of Appeal, Criminal Procedure, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Angatia Kangu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of First Appeal by High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellant's first appeal against conviction and sentence without a hearing.
- 2 Whether the appellant's constitutional right to a fair trial under Article 50(4) of the Constitution was violated by the summary rejection.
Ratio Decidendi
The Court of Appeal found that the appellant's memorandum of appeal raised grounds that warranted a hearing before the High Court. The summary rejection of the appeal by the High Court, without affording the appellant an opportunity to argue his case, was improper and violated his right to a fair trial under Article 50(4) of the Constitution. The Court emphasized that, particularly in cases involving serious sentences such as life imprisonment, appellants must be given a fair opportunity to present their appeals. Consequently, the Court of Appeal allowed the appeal, set aside the High Court's order of summary rejection, and directed that the appeal be heard on its merits.
Court Disposition
Appeal allowed; summary rejection set aside; matter remitted for hearing on merits.
Orders
- The appeal against summary rejection is allowed.
- The order made on 6th October, 2010 by Lenaola, J. is set aside.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A.)
CRIMINAL APPEAL NO. 112 OF 2014
BETWEEN
ELPHAS ANGATIA KANGU ………………………………... APPELLANT
AND
REPUBLIC …………………………………………….….. RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Kakamega, (Lenaola, J.) dated 6th October, 2010
in
HCCRA NO. 123 OF 2010
******************
JUDGMENT OF THE COURT
1. The appellant was convicted of incest and sentenced to life imprisonment. His first appeal against conviction and sentence was summarily rejected by Lenaola, J. under section 352 (2)of theCriminal Procedure Code.
2. The appellant faulted the High Court for the summary rejection of his appeal, arguing that he had advanced valid grounds of appeal. He added that his constitutional right to a fair trial as stipulated under Article 50 (4)of theConstitutionhad been violated.
3. Mr. Ketoo, Prosecution Counsel, for the respondent, conceded that the appellant ought to have been given an opportunity to pursue his appeal, moreso considering the sentence that had been handed down by the trial court.
4. Section 352 (2)of theCriminal Procedure Code states as follows:
“where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the sentence is excessive, and it appears to a judge that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead him to the opinion that the sentence ought to be reduced, the appeal may, without being set down for hearing, be summarily rejected by an order of the judge certifying that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint.”
5. Having looked at the memorandum of appeal that was filed by the appellant, we think that he ought to have been granted an opportunity to argue it before the High Court. Consequently, we allow this appeal against its summary rejection. We set aside the order made on 6th October, 2010 by Lenaola, J. and direct that the appeal be set down for hearing on its merit.
DATED and delivered at Kisumu this 29th day of July, 2016.
D. K. MUSINGA
………………….………..
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
…………………………….
JUDGE OF APPEAL
A.K. MURGOR
………………………..…..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR