[1985] KECA 94 (KLR)
The Court of Appeal held that the first ground of appeal in the supplementary petition raised a point of law, namely whether the facts admitted by the appellant could constitute the offences charged. This took the appeal outside the scope of section 352(2) of the Criminal Procedure Code, which only permits summary...
Source-derived case information.
- Citation
- [1985] KECA 94 (KLR)
- Parties
- Appellant: Kibwala; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 167 of 1984
- Procedural Posture
- Criminal Appeal / Second Appeal From Summary Dismissal of First Appeal
- Outcome
- Appeal allowed. High Court's summary dismissal set aside. Case remitted to High Court for hearing on merits.
- Legal Topics
- False Pretences, Plea of Guilty, Summary Dismissal, Criminal Appeals, Penal Code Section 313
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibwala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Summary Dismissal of First Appeal
Legal Issues
- 1 Whether the High Court erred in law by summarily dismissing the first appeal under section 352(2) of the Criminal Procedure Code when the grounds raised a point of law.
- 2 Whether a plea of guilty precludes consideration of legal issues arising from the facts admitted.
Ratio Decidendi
The Court of Appeal held that the first ground of appeal in the supplementary petition raised a point of law, namely whether the facts admitted by the appellant could constitute the offences charged. This took the appeal outside the scope of section 352(2) of the Criminal Procedure Code, which only permits summary dismissal where the appeal is based on the weight of evidence or sentence. The High Court therefore erred in summarily dismissing the appeal without considering the legal issue raised, even though the appellant had pleaded guilty. The proper course was to allow the appeal and remit the matter to the High Court for consideration on the merits.
Court Disposition
Appeal allowed. High Court's summary dismissal set aside. Case remitted to High Court for hearing on merits.
Orders
- The appeal is allowed.
- The order of the High Court summarily dismissing the appeal is set aside.
Full Case Text
Judgment text and source record
10 paragraphs
Kibwala v Republic
Court of Appeal, at Nairobi January 24, 1985
Madan JA, Nyarangi & Platt Ag JJA
Criminal Appeal No 167 of 1984
(Appeal from the High Court at Nairobi, Aganyanya J)
January 24, 1985, Madan JA, Nyarangi & Platt Ag JJA delivered the following
Judgment.
The appellant pleaded guilty and was convicted on two counts of obtaining money by false pretences, and on two counts attempting to obtain money by false pretences, all counts being laid contrary to section 313 of the Penal Code, without the 2 attempts counts being connected with section 389 also of the Penal Code. He appealed to the High Court. In a supplementary petition of appeal filed by an advocate the first ground of appeal was that the facts adduced by the prosecutor and admitted by the appellant did not and could not in law constitute an offence of obtaining or attempting to obtain money by false pretences. The appeal was summarily rejected by the High Court under section 352(2) of the Criminal Procedure Code. The appellant has appealed to this court on the one succinct ground that the High Court erred in law in summarily dismissing the first appeal. It is only on a ground of law that this second appeal could be presented to this court and we treat the ground of appeal accordingly.
This court has repeatedly stated that the judge of High Court is empowered to reject an appeal summarily if it is brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive and it appears to him that it was sufficient to support the conviction and that there is no material in the circumstances of the case which would raise a reasonable doubt whether the conviction was right or lead him to the opinion that the subject ought to be reduced.
In our opinion the first ground of appeal in the supplementary petition of appeal took the appeal to the High Court out of the ambit of section 352(2). It was therefore wrongly rejected summarily, this notwithstanding that the appellant pleaded guilty. We are aware of cases where even after a plea of guilty an accused person has been able to establish to his advantage a change in the events either as stated or as narrated to the court. We note that although served the Attorney General’s Chambers is not represented.