[1999] KECA 79 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal because the memorandum of appeal raised grounds beyond those permitted for summary rejection under section 352(2) of the Criminal Procedure Code. Specifically, the issue of disqualification of a defence witness was a...
Source-derived case information.
- Citation
- [1999] KECA 79 (KLR)
- Parties
- Appellant: Fatuma Ashur; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 48 of 1999
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
- Outcome
- Appeal allowed; summary rejection quashed; appeal remitted to High Court for hearing.
- Legal Topics
- Summary Rejection of Appeal, Jurisdiction of Appellate Court, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Ashur
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
Legal Issues
- 1 Whether the High Court had jurisdiction to summarily reject the appellant's appeal when grounds other than weight of evidence or excessive sentence were raised.
- 2 Whether the disqualification of a defence witness was a valid ground of appeal precluding summary rejection.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal because the memorandum of appeal raised grounds beyond those permitted for summary rejection under section 352(2) of the Criminal Procedure Code. Specifically, the issue of disqualification of a defence witness was a substantive ground that required the High Court to admit the appeal for hearing. The summary rejection was therefore without jurisdiction and invalid. The Court of Appeal quashed the summary rejection and directed that the appeal be admitted for hearing before a Judge of the High Court.
Court Disposition
Appeal allowed; summary rejection quashed; appeal remitted to High Court for hearing.
Orders
- The appeal is allowed.
- The summary rejection of the appeal by the High Court is quashed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA (CORAM: CHESONI, CJ. TUNOI & LAKHA JJ.A) CRIMINAL APPEAL NO. 48 OF 1999 BETWEEN FATUMA ASHUR.............................................APPELLANT AND REPUBLIC.................................................RESPONDENT(Appeal from order or as the case may be of the High Court of Kenya at Mombasa (Mr. Justice Waki) dated 25th March 1999in H.C.CR.A NO. 380 OF 1998 ********************* JUDGMENT OF THE COURT
In this case the appellant who was convicted on a charge of creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code was sentenced to pay a fine of Shs. 3,000/=. Her appeal to the superior court was summarily rejected by Waki J.
She had appealed on three grounds which were that:
(1)The learned magistrate erred in law and in fact in convicting the appellant.
(2)The learned magistrate erred in law and fact in fining the appellant Shs. 3,000/= and
(3)The learned magistrate erred in law and fact in dismissing ALI SAID ALI from giving evidence as a defence witness.
If we may start with ground 3 Ali was disqualified as a defence witness because it was alleged that he had been listening to the proceedings in court.
In the case of YOUNG CHARLES OKANG V. REPUBLIC [1982 - 88] 1 KAR 276 this court held that
"Section 352(2) of the Criminal Procedure Code expressly limited the power of summary rejection to cases where the appeal is brought on the ground that the convictions were against the weight of evidence, or that the sentence was excessive."
In the instant case other issues including disqualification of a defence witness were involved and raised in the memorandum of appeal to the superior court which consequently denied that court the jurisdiction to reject the appeal summarily. Mr Gacivih for the state agrees. In the result, the appeal is allowed, the summary rejection of it is quashed and it is directed that the appellant's appeal in the superior court be returned to that court for admission to hearing by a Judge of the Court.
We so ordered and delivered at Mombasa this 19th day of July, 1999.
Z.R. CHESONICHIEF JUSTICEP.K. TUNOIJUDGE OF APPEALA. A. LAKHAJUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR