[2005] KECA 153 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal under section 352(2) of the Criminal Procedure Code because the grounds of appeal raised the issue of identification at the scene of crime, which is a legal issue. The summary rejection power is limited to appeals that...
Source-derived case information.
- Citation
- [2005] KECA 153 (KLR)
- Parties
- Appellant: Hamisi Kyalo Fred; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 127of 20 of 2004
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection by High Court
- Outcome
- Appeal allowed; summary rejection set aside; appeal reinstated for hearing in the High Court.
- Judges
- AM Githinji, J Wakiaga
- Legal Topics
- Summary Rejection of Appeal, Identification Evidence, Powers of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Kyalo Fred
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection by High Court
Legal Issues
- 1 Whether the High Court was entitled to summarily reject the appellant's appeal under section 352(2) of the Criminal Procedure Code.
- 2 Whether the issue of identification at the scene of crime is a point of law warranting a full hearing of the appeal.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal under section 352(2) of the Criminal Procedure Code because the grounds of appeal raised the issue of identification at the scene of crime, which is a legal issue. The summary rejection power is limited to appeals that only challenge the weight of evidence or the excessiveness of sentence. Since the appellant's grounds went beyond these, the High Court was not entitled to exercise summary rejection. The appeal was therefore allowed, the summary rejection set aside, and the appeal reinstated for hearing on its merits in the High Court.
Court Disposition
Appeal allowed; summary rejection set aside; appeal reinstated for hearing in the High Court.
Orders
- The appeal is allowed.
- The summary rejection of the appeal by the High Court is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA (CORAM: OMOLO, GITHINJI & WAKI, JJ.A.) Criminal Appeal 127 of 2004
BETWEEN
HAMISI KYALO FRED ……………...………………………………… APPELLANT AND REPUB LIC …………………………………………………………… RESPONDENT
(Appeal from an Order of the High Court of Kenya at Mombasa (Mwera, J) dated 7th July, 2004
in H.C.CR.A. No. 127 of 2003 *************************
JUDGMENT OF THE COURT
Mwera, J summarily rejected the appeal to the High Court by the appellant and the learned Judge in doing so was purportedly exercising his powers under section 352 of the Criminal Procedure Code. That section only allows summary rejection of an appeal, where the grounds of appeal merely allege that the conviction was against the weight of evidence or that the sentence is excessive. The appellant’s appeal to the superior court raised the issue of his identification at the scene of crime and that is always an issue of law. The learned Judge was accordingly not entitled to reject the appeal under section 352 (2) of the Code. Mrs. Mwangi, the learned counsel for the Republic, does not support the learned Judge’s decision. She is clearly right in taking that position. We accordingly allow the appeal before us, set aside the summary rejection of his appeal by the superior court and reinstate the appeal in the superior court with a further direction to that court to admit the appeal to hearing according to law. Those shall be our orders in the appeal.
Dated and delivered at Mombasa this 19th day of July, 2005.
R.S.C. OMOLO
…………………………………….
JUDGE OF APPEAL
E.M. GITHINJI
…………………………………..
JUDGE OF APPEAL
P.N. WAKI
……………………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.