[2005] KECA 256 (KLR)
The Court of Appeal held that the High Court erred in summarily dismissing the appellant's first appeal because the grounds raised in the petition of appeal were not confined to the weight of evidence or excessiveness of sentence, which are the only grounds that permit summary dismissal under section 352(2) of the...
Source-derived case information.
- Citation
- [2005] KECA 256 (KLR)
- Parties
- Appellant: Patrick Kamau Chege; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2002
- Procedural Posture
- Criminal Appeal / Appeal From Summary Dismissal of First Appeal
- Outcome
- Appeal allowed. Order for summary dismissal quashed. Appeal in the High Court reinstated for hearing.
- Judges
- AM Githinji
- Legal Topics
- Firearms Offences, Criminal Appeals, Summary Dismissal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kamau Chege
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Dismissal of First Appeal
Legal Issues
- 1 Whether the High Court erred in summarily dismissing the appellant's first appeal.
- 2 Whether the grounds of appeal fell outside the scope of section 352(2) of the Criminal Procedure Code.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily dismissing the appellant's first appeal because the grounds raised in the petition of appeal were not confined to the weight of evidence or excessiveness of sentence, which are the only grounds that permit summary dismissal under section 352(2) of the Criminal Procedure Code. The summary dismissal was therefore unlawful, and the appellant's appeal to the High Court must be reinstated for hearing on its merits.
Court Disposition
Appeal allowed. Order for summary dismissal quashed. Appeal in the High Court reinstated for hearing.
Orders
- The appeal is allowed.
- The order for summary dismissal by the High Court is quashed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: TUNOI, GITHINJI , JJ.A. & DEVERELL, AG. J.A.) CRIMINAL APPEAL NO. 90 OF 2002
BETWEEN
PATRICK KAMAU CHEGE………………………………………….APPELLANT AND REPUBLIC……………………………………………………………RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. Justice Visram) dated 17 th April 2002)
in H.C.CR.APP. NO. 489 of 2001. *****************
JUDGMENT OF COURT
The appellant PATRICK CHEGE KAMAU was after trial convicted of being in possession of imitation of a firearm contrary to section 34(1)of the Firearms Act, Cap 114 Laws of Kenya and sentenced to 10 years imprisonment. His first appeal to the High Court of Kenya at NAKURU was summarily dismissed on 17th April, 2002.
The appellant had lodged not less than four grounds of appeal in his Petition of Appeal before the superior court and he now complains that the summary dismissal by that Court was wrong. The learned Assistant D.P.P. Mr. Gumo agrees and we think rightly so.
The only cases in which an appeal may be summarily rejected are those laid down in section 352 (2)of the Criminal Procedure Code – they are where the appeal is filed on the ground that the conviction is against the weight of the evidence or that the sentence is excessive. This was not so in the matter before us. The first appellate Court erred in summarily dismissing the appeal before it.
We allow this appeal and quash the order for summary dismissal. The appellant’s appeal lodged in the High Court is reinstated to hearing according to law.
Dated and delivered at Nakuru this 21st day of February, 2005.
P.K. TUNOI
……………………….
JUDGE OF APPEAL
E.M. GITHINJI
………………………
JUDGE OF APPEAL
W.S. DEVERELL
……………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR