[2015] KECA 613 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellants' appeals because the memoranda of appeal raised substantial points of law, specifically on identification/recognition, which required a full hearing. The appellants had also requested copies of proceedings to enable them to...
Source-derived case information.
- Citation
- [2015] KECA 613 (KLR)
- Parties
- Appellant: Fidelis Wandera Makokha Ouma; Appellant: Nicodemus Dede Magio; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 262 & 263 of 2012
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeal by the High Court
- Outcome
- appeal allowed
- Judges
- DK Maraga, DK Musinga, SG Kairu
- Legal Topics
- Robbery With Violence, Summary Rejection of Appeal, Identification Evidence, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelis Wandera Makokha Ouma
Appellant
Nicodemus Dede Magio
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeal by the High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellants' appeals without a plenary hearing.
- 2 Whether the grounds raised in the memoranda of appeal constituted substantial points of law warranting a full hearing.
- 3 Whether the appellants were entitled to copies of proceedings to enable them to amend their memoranda of appeal.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellants' appeals because the memoranda of appeal raised substantial points of law, specifically on identification/recognition, which required a full hearing. The appellants had also requested copies of proceedings to enable them to raise additional grounds, potentially of a legal nature. The summary rejection thus denied the appellants their right to a fair hearing on legal issues. The appeals were allowed, and the matter was remitted to the High Court for a fresh hearing before a different judge, with directions for the appellants to be supplied with the necessary proceedings.
Court Disposition
appeal allowed
Orders
- The appeals are allowed.
- The appellants' appeals in the High Court shall be heard afresh by a judge other than Muchemi, J.
Full Case Text
Judgment text and source record
46 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: MARAGA, MUSINGA & GATEMBU, JJ.A)
CRIMINAL APPEAL NO. 262 OF 2012
BETWEEN
FIDELIS WANDERA MAKOKHA OUMA &
NICODEMUS DEDE MAGIO.................APPELLANTS
AND
REPUBLIC.........................................RESPONDENT
(An Appeal from a Judgment of the High Court of Kenya at Busia
(Muchemi, J.) dated 5th May, 2009
in
H.C.CR.A. NO. 7 OF 2009)
********************
Consolidated with
CRIMINAL APPEAL NO. 263 OF 2012
BETWEEN
NICODEMUS DEDE MAGIO………………………. APPELLANT
AND
REPUBLIC ………………………………………… RESPONDENT
(An Appeal from a Judgment of the High Court of Kenya at Busia
(Muchemi, J) dated 5th May, 2015
in
H.C.CR.A. NO. 8 OF 2009)
******************
JUDGMENT OF THE COURT
1. FIDELIS WANDERA MAKOKHA OUMA (the 1st appellant) and NICODEMUS DEDE MAGIO (the 2nd appellant) were charged with the offence of robbery with violence contrary to Section 295 as read together withSection 296(2)of the Penal Code. The 1st appellant was in the alternative charged with handling stolen property contrary to Section 322(2) of the Penal Code.
2. After trial the appellants were convicted on the main charge of robbery with violence and sentenced to death. Their appeal to the High Court was summarily rejected thus provoking the two appeals before us.
3. At the hearing the two appeals were consolidated and Mr. Sirtuy, learned Principal Prosecution Counsel, conceded them arguing that there was no sufficient ground for rejecting the appellants’ appeal summarily.
4. On their part, Messrs Onyango and Odeny, learned counsel for the appellants, citing several authorities in support of their submissions, argued that the appellants’ appeals to the High Court raised substantial points of law which merited a plenary hearing. They therefore faulted the learned Judge for rejecting them summarily and urged us to allow this appeal.
5. Section 352(2) of the Criminal Procedure Code authorizes a Judge of the High Court to summarily reject an appeal after perusing the record if it is based on the ground that
“the conviction is against the weight of 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 …”
6. In this case both appellants raised the issue of identification/recognition which is a point of law. Besides that, in their memoranda of appeal, they both applied for copies of proceedings to enable them “raise more grounds”of appeal which could very well have been further points of law.
7. In the circumstances, we agree with counsel for the appellants and the Principal Prosecution Counsel that the learned Judge erred in rejecting the appellants’ appeal summarily. Consequently, we allow these appeals and direct that the appellants’ appeals in the High Court be heard afresh by a Judge other than Muchemi, J. We further direct that the appellants be supplied with copies of the proceedings to enable them amend their memoranda of appeal to the High Court as they had requested.
DATED and delivered at Kisumu this19th day of June, 2015.
D.K. MARAGA
……………………
JUDGE OF APPEAL
D.K. MUSINGA
…………………….
JUDGE OF APPEAL
S. GATEMBU KAIRU
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR