[1992] KECA 18 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal without considering all the grounds raised. Section 352(2) of the Criminal Procedure Code restricts summary rejection to appeals based solely on the weight of evidence or excessiveness of sentence. Since the appellant's...
Source-derived case information.
- Citation
- [1992] KECA 18 (KLR)
- Parties
- Appellant: George Kibe Mwaura; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 1992
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
- Outcome
- Appeal allowed; High Court's summary rejection set aside; matter remitted for hearing before a different judge.
- Legal Topics
- Summary Rejection of Appeal, Grounds of Appeal, Criminal Procedure Code Section 352, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kibe Mwaura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellant's appeal without considering all the grounds of appeal.
- 2 Whether the summary rejection was permissible under section 352(2) of the Criminal Procedure Code.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal without considering all the grounds raised. Section 352(2) of the Criminal Procedure Code restricts summary rejection to appeals based solely on the weight of evidence or excessiveness of sentence. Since the appellant's grounds included substantive issues, including his explanation for the presence of his fingerprints on the stolen car, the High Court was required to consider these grounds. The State Counsel's concession reinforced the impropriety of the summary rejection. The Court of Appeal therefore allowed the appeal, set aside the summary rejection, and directed that the appeal be heard...
Court Disposition
Appeal allowed; High Court's summary rejection set aside; matter remitted for hearing before a different judge.
Orders
- The appeal is allowed.
- The order of summary rejection by the High Court is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CRIMINAL APPEAL 47 OF 1992
GEORGE KIBE MWAURA …………….……… APPELLANT
AND
REPUBLIC ……………………………..…….. RESPONDENT
(Appeal from an order of the High Court of Kenya
irobi (Mr Justice Mbogholi) dated 30th November, 1990,
In
H.C.CR.A. No 1281 of 1990)
****************
JUDGMENT OF THE COURT
The appeal to the High Court was based on 6 grounds. Leaving aside the other grounds these is ground No 5 which refers to the defence raised by the appellant which was his explanation on how his finger prints could have come to be on the car that was stolen. Clearly the High Court ought not to have summarily rejected this appeal without considering the grounds of appeal. Section 352(2) of the Criminal Procedure Code allows a summary rejection only when the appeal is brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive. Miss Kamau, the State Counsel, in our view has very rightly conceded the appeal so that the High Court may hear the appeal filed by the appellant on 23rd October, 1990.
The appellant has requested that the High Court be directed to hear the appeal on priority basis. We therefore, allow this appeal on the ground that it ought not to have been summarily rejected by the High Court and order that the appeal to the High Court be heard by a different judge. We also direct that the appeal be heard with expedition.
Dated and delivered at Nairobi this 15th day of November, 1992.
A.M. COCKAR
JUDGE OF APPEAL
M.G. MULI
JUDGE OF APPEAL
A.M. AKIWUMI
JUDGE OF APPEAL