[1989] KECA 15 (KLR)
The Court of Appeal found that the appellant's plea of guilty was not unequivocal and that the charge sheet failed to disclose an offence under section 8(1)(a)(i) of the Forests Act, as it did not allege that the offence occurred within a forest. Consequently, the appellant's appeal to the High Court raised issues...
Source-derived case information.
- Citation
- [1989] KECA 15 (KLR)
- Parties
- Appellant: Kariuki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 97 of 1989
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and charge dismissed
- Judges
- JRO Masime, JE Gicheru, RO Kwach
- Legal Topics
- Plea of Guilty, Summary Rejection of Appeal, Forest Offences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal.
- 2 Whether the particulars on the charge sheet disclosed an offence under section 8(1)(a)(i) of the Forests Act.
- 3 Whether the High Court was right to summarily reject the appellant's appeal under section 352(2) of the Criminal Procedure Code.
Ratio Decidendi
The Court of Appeal found that the appellant's plea of guilty was not unequivocal and that the charge sheet failed to disclose an offence under section 8(1)(a)(i) of the Forests Act, as it did not allege that the offence occurred within a forest. Consequently, the appellant's appeal to the High Court raised issues of law that required a hearing on the merits, making the summary rejection by the High Court improper. Exercising its powers under section 3(2) of the Appellate Jurisdiction Act, the Court of Appeal set aside both the summary rejection and the conviction, and dismissed the charge against the appellant.
Court Disposition
appeal allowed; conviction and charge dismissed
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
28 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Masime, Gicheru & Kwach, JJA)
CRIMINAL APPEAL NO 97 OF 1989
KARIUKI.......................................................PLAINTIFF
VERSUS
REPUBLIC...................................................DEFENDANT
JUDGMENT
September 26, 1989,Masime, Gicheru & Kwach, JJA delivered the following judgment.
The appellant was convicted on his own plea of guilty of the offence of removing forest produce without a permit from the chief conservator contrary to section 8(1) (a)(i) of the Forests Act (cap 385), and fined Kshs 1,000 or 2 months imprisonment in default. His appeal to the High Court was summarily rejected under section 352 (2) of the Criminal procedure Code.
The summary rejection of the appellant’s appeal was wrong for two reasons. First, the plea itself was not unequivocal.
Secondly, the particulars on the charge sheet did not disclose an offence under section 8(1)(a)(i) because there is no allegation that the alleged offence, if any, was committed within a forest.
It must follow from this that the appellant’s appeal to the High Court raised an issue of law on which he was entitled to be heard on the merits and its summary rejection was therefore wrong. In normal circumstances, this court would make an order setting aside the summary rejection and directing he High Court to deal with the appeal in accordance with the law. But in this case, in the interests of justice, we propose to exercise the power given under section 3(2) of the Appellate Jurisdiction Act (cap 9) and make the order which should have been made by the High Court.
We allow this appeal, set aside the summary rejection and the conviction entered by the magistrate and dismiss the charge laid against the appellant.
The fine of Kshs 1,00, if already paid, is to be refunded to the appellant.
Those are the orders of the court.
Dated and Delivered at Nakuru this 26th September, 1989
J.R.O MASIME
.................................
JUDGE OF APPEAL
J.E GICHERU
.................................
JUDGE OF APPEAL
R.O KWACH
.................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR