[2004] KECA 108 (KLR)
The Court of Appeal found that the High Court judge erred in law by hearing and determining the appeal as a single judge without written authority from the Chief Justice, contrary to section 359(1) of the Criminal Procedure Code. This procedural irregularity rendered the proceedings, conviction, and sentence a...
Source-derived case information.
- Citation
- [2004] KECA 108 (KLR)
- Parties
- Appellant: Peter Ndungu Kihiko; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 162 of 2003
- Procedural Posture
- Criminal Appeal / Appeal From High Court Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; retrial ordered
- Legal Topics
- Robbery With Violence, Appellate Jurisdiction, Composition of Bench
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndungu Kihiko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Judgment
Legal Issues
- 1 Whether the High Court erred in hearing the appeal as a single judge contrary to section 359(1) of the Criminal Procedure Code.
- 2 Whether the conviction and sentence imposed by a single judge should be set aside.
Ratio Decidendi
The Court of Appeal found that the High Court judge erred in law by hearing and determining the appeal as a single judge without written authority from the Chief Justice, contrary to section 359(1) of the Criminal Procedure Code. This procedural irregularity rendered the proceedings, conviction, and sentence a nullity. Consequently, the conviction and sentence of death imposed on the appellant by the High Court were set aside, and the matter was remitted for rehearing before a properly constituted bench of two judges.
Court Disposition
appeal allowed; conviction and sentence set aside; retrial ordered
Orders
- The appeal is allowed.
- The conviction and sentence of death imposed on the appellant are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU CORAM: OMOLO, O’KUBASU & GITHINJI, JJ.A. CRIMINAL APPEAL NO. 162 OF 2003
BETWEEN
PETER NDUNGU KIHIKO …..………...….…………………………. APPELLANT AND REPUBLIC …..…….………………………………………………….. RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Nakuru (Apondi J) dated 4th July, 2003 in H.C.CR.A. NO. 251 OF 2000) ************
JUDGMENT OF THE COURT
The appellant herein was convicted of robbery contrary to section 296 (1) of the Penal Code but when the appeal came up for hearing before Muga Apondi, J. he revised the conviction to robbery with violence contrary to section 296 (2) of the Penal Code. The learned counsel for the appellant has drawn our attention to the provisions of section 359 (1) of the Criminal Procedure Code which refers to appeals by two judges.
Since the practice by the High Court is that appeals be heard by two judges unless there is a written authority by the Chief Justice directing that the appeal be heard by one judge we are satisfied that there was an error on the part of Muga Apondi, J. in proceeding with the hearing of the appeal while sitting as a single judge. For these reasons we allow the appeal and set aside the conviction and sentence of death imposed on the appellant. We further direct that the appeal be re-heard by a bench of two judges. Meanwhile the appellant shall continue to serve the sentence imposed by the trial magistrate.
Dated and delivered at Nakuru this 21st day of September, 2004.
R. S. C. OMOLO
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JUDGE OF APPEAL
E. O. O’KUBASU
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JUDGE OF APPEAL
E. M. GITHINJI
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR