[1990] KECA 38 (KLR)
The Court of Appeal found that the record of appeal was incomplete due to the absence of summing up notes and non-compliance with section 322(1) of the Criminal Procedure Code. This procedural defect was material and rendered the conviction unsafe. In the interest of justice, the court set aside the convictions and...
Source-derived case information.
- Citation
- [1990] KECA 38 (KLR)
- Parties
- Appellant: Lwengele; Appellant: another; Respondent: Staff Counsel
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 23 of 1986
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- convictions and sentences set aside; retrial ordered
- Legal Topics
- Criminal Appeal Procedure, Incomplete Record, Retrial Order, Non Compliance With Statute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lwengele
Appellant
another
Appellant
Staff Counsel
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appeal record was complete and complied with procedural requirements.
- 2 Whether the absence of summing up notes and non-compliance with section 322(1) of the Criminal Procedure Code invalidated the conviction.
Ratio Decidendi
The Court of Appeal found that the record of appeal was incomplete due to the absence of summing up notes and non-compliance with section 322(1) of the Criminal Procedure Code. This procedural defect was material and rendered the conviction unsafe. In the interest of justice, the court set aside the convictions and sentences and ordered a retrial before a different judge, emphasizing the need for expeditious handling given the appellants' prolonged custody since April 1984.
Court Disposition
convictions and sentences set aside; retrial ordered
Orders
- The convictions are set aside.
- The sentences are set aside.
Full Case Text
Judgment text and source record
7 paragraphs
Lwengele & another v Staff Counsel
REPUBLIC OF KENYA Court of Appeal, at Kisumu March 27, 1990 Nyarangi, Gicheru JJA & Chesoni Ag JA Criminal Appeal No 23 of 1986 On March 27, 1990, Nyarangi, Gicheru JJA & Chesoni Ag JA delivered the following Judgment. The question which arises in this appeal is, a short one, and we think an easy one.
The record of appeal before us is incomplete and, having regard to our rules, defective. The summing up notes are not included in the record of appeal, and section 322 (1) of the Criminal Procedure Code was not complied with.
For the foregoing purpose interest of justice, it is desirable that the case be re-retried before some judge. It follows that the convictions are queried and the sentences set aside.
We are aware that the appellant has been in custody since April 1984. For that reason, we respectfully suggest to the Superior Court concerned to give the matter of the re-trial highest priority.
In the meantime the appellants shall be kept in custody until the date of the re-trial.
Orders accordingly.