[2000] KECA 79 (KLR)
The Court of Appeal held that the High Court, as the first appellate court, failed to comply with the mandatory requirements of section 169(1) of the Criminal Procedure Code by not considering the appellant's grounds of appeal or providing adequate reasons for its decision. The judgment was found to be insufficient...
Source-derived case information.
- Citation
- [2000] KECA 79 (KLR)
- Parties
- Appellant: James Kamau Ndirangu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 72 of 1999
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- Appeal allowed; matter remitted to the High Court for rehearing before a different judge.
- Legal Topics
- Appeals Process, Judgment Requirements, Possession of Narcotics, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kamau Ndirangu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether the High Court, as the first appellate court, failed to consider the grounds of appeal as required by law.
- 2 Whether the judgment of the High Court complied with section 169(1) of the Criminal Procedure Code regarding reasons for decision.
- 3 Whether the Court of Appeal can interfere with the sentence imposed by the trial court.
Ratio Decidendi
The Court of Appeal held that the High Court, as the first appellate court, failed to comply with the mandatory requirements of section 169(1) of the Criminal Procedure Code by not considering the appellant's grounds of appeal or providing adequate reasons for its decision. The judgment was found to be insufficient and procedurally defective. The Court of Appeal emphasized that even if an appellant is not present, the appellate court is obligated to consider the grounds of appeal and provide reasoned findings. As a result, the Court of Appeal allowed the appeal and remitted the matter to the High Court for rehearing before a different judge, ensuring the appellant's presence at the...
Court Disposition
Appeal allowed; matter remitted to the High Court for rehearing before a different judge.
Orders
- The appeal is allowed.
- The matter is remitted to the High Court for rehearing by another judge.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI
(CORAM: SHAH, OWUOR & KEIWUA, JJ.A.)
CRIMINAL APPEAL NO. 72 OF 1999
BETWEEN
JAMES KAMAU NDIRANGU ................................... APPELLANT
AND
REPUBLIC ............................................... RESPONDENT
(Appeal from a Judgment of the High Court of Kenya at Nyeri (Mr. Justice J.V.O. Juma) dated 4th May, 1999
in
H.C.CR.APPEAL NO. 312 OF 1997)
********************
JUDGMENT OF THE COURT
The appellant was convicted of being in possession of Cannabis Sativa contrary to section 3(1)(2) of the Narcotic Drugs & Psychotropic Substance Actof 1994, and sentenced to seven years' imprisonment by District Magistrate 1, P.J.D. MwangHuilsu Efsiqrusitr ea.ppeal from this conviction and sentence was dismissed by the High Court, at Nyeri, on 4th May, 1999. In his home-made grounds of appeal as presented to the High Court the appellant put forward the grounds of appeal which we will summarize as follows:
1. That the trial magistrate occasioned a miscarriage of justice by basing a conviction on uncorroborated evidence of P.W.1 and P.W.2.
2. That the trial magistrate did not adjudicate on the contradictions in the evidence of P.W.1. and P.W.2. and cast the burden of proof on the appellant.
3. That the trial magistrate did not adjudicate on the fact that one of the arresting Administration Policeman was not called to give evidence.
4. The trial magistrate failed to consider properly the defence put forward by the appellant.
Whilst the appellant urges that he had wanted to be present at the hearing of the appeal in the High Court, the petition of appeal lodged by him in that court shows that he did not wish to be present at the hearing. If we were to go by the record it is clear that the appellant did not wish to be present at the hearing of the appeal. However, for the purposes of this appeal before us, nothing will turn on that discrepancy.
When the appeal came up for hearing before the superior court (Juma, J.) the appellant was not present and the state counsel submitted as follows:
"Charge of being in possession of bhang. He had 20 rolls of bhang. Sentenced to 7 years. In mitigation he stated that he had 30 other cases."
The learned judge did not consider even cursorily the grounds of appeal propounded by the appellant. He said:-
"Having perused the record I am satisfied that the appellant was properly convicted. On sentence, I was inclined to lower the same but in view of the appellant's admission that he has 30 other cases, I will not interfere with the sentence."
It is a mandatory requirement ofsection 169(1)of the Criminal Procedure Code that every judgment shall (inter alia) contain the point or points for determination, the decision thereon and the reasons for the decision. See the case of R.V.
PAULO LWEVOEA S/O MUPERE (1943) E.A.C.A. 63. The then Court of Appeal for Eastern Africa said:- with regrad to the judgment we should have liked a fuller judgment and we attract attention of the learned judge to section 163 of the Criminal Procedure Code . "
(Ugandan Section 168 of the Criminal Procedure Code was equivalent to present Section 169 of our Criminal Procedure Code.)
We are not saying the first appellate court should re-write the judgment. We are saying that the first appellate court ought to examine the grounds of appeal before rejecting them. Such examination need not be lengthy but ought to set out the finding(s) on the grounds of appeal in a manner showing that it has considered them adequately.
Even if an appellant does not wish to be present at the hearing of his appeal the court is bound to properly consider his grounds of appeal and if the grounds be frivolous the court ought to say so.
The Principal State Counsel Mr. Oluoch conceded, and in our view rightly so, that the judgment of the superior court was sketchy. He added that it had caused a lot of disquiet. He urged, however, that there was enough material before us, to decide the appeal. That may be so but this Court on a second appeal cannot interfere with a sentence. It would therefore be proper and prudent, in our view, to remit the appeal to the superior court for a rehearing by another Judge who should consider the grounds of appeal as well as the severity of the sentence. We note that the records of convictions, if any, in the alleged 31 cases were not produced before that Court to check if those were relevant. For this reason it is not necessary for us to consider the appellant's other grounds of appeal.
We therefore allow this appeal. As the appellant wishes to be present at the re-hearing, the prison authorities must facilitate his attendance in Court for the rehearing of the appeal. These are our orders.
Dated and delivered at Nyeri this 17th day of May, 2000.
A.B. SHAH ....................
JUDGE OF APPEAL
E. OWUOR ....................
JUDGE OF APPEAL
M. KEIWUA .....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR