[1997] KECA 21 (KLR)
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal under section 352(2) of the Criminal Procedure Code because the grounds of appeal raised the issue of identification, which is a question of law and requires a full hearing. Furthermore, the High Court had no authority...
Source-derived case information.
- Citation
- [1997] KECA 21 (KLR)
- Parties
- Appellant: Peter Ndungu Njoroge; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 91 of 1995
- Procedural Posture
- Criminal Appeal / Appeal From High Court Order on Revision
- Outcome
- Appeal allowed; High Court orders set aside; appeal to be heard on merits by High Court.
- Legal Topics
- Summary Rejection of Appeal, Revision Jurisdiction, Identification Evidence, Sentencing Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndungu Njoroge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Order on Revision
Legal Issues
- 1 Whether the High Court was entitled to summarily reject the appellant's criminal appeal under section 352(2) of the Criminal Procedure Code.
- 2 Whether the High Court could combine summary rejection of appeal with revisionary powers under section 362 of the Criminal Procedure Code.
- 3 Whether the grounds of appeal raising identification required a full hearing.
Ratio Decidendi
The Court of Appeal held that the High Court erred in summarily rejecting the appellant's appeal under section 352(2) of the Criminal Procedure Code because the grounds of appeal raised the issue of identification, which is a question of law and requires a full hearing. Furthermore, the High Court had no authority to combine the summary rejection procedure with the exercise of revisionary powers under section 362. The fact that the judge considered reducing the sentence was itself a reason to admit the appeal for hearing. Accordingly, the orders of the High Court were set aside, and the appellant's appeal was ordered to be admitted to hearing and determined according to law.
Court Disposition
Appeal allowed; High Court orders set aside; appeal to be heard on merits by High Court.
Orders
- The appeal is allowed.
- All orders made by the High Court Judge are set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Criminal Appeal 91 of 1995
PETER NDUNGU NJOROGE…………….........................................……………………APPELLANT
AND
REPUBLIC…………………….......................................………………………………..RESPONDENT
(Appeal from an order of the High Court of Kenya at Nairobi (Patel J) dated 26th April,
1995
IN
H.C.CR.A. NO. 1429 OF 1994)
*************************
JUDGMENT OF THE COURT
Mr. Bwonwonga, the Assistant Deputy Public Prosecutor, who appears for the state concedes this appeal. In our view he is right to do so. The appellant filed first appeal in the High Court. When the appeal went before Patel, J. he purported to make an order on revision. In the "Order on Revision" the Judge purported to summarily reject the appeal. An appeal can only be summarily rejected under section 352(2) of the Criminal Procedure Code. That provision only applies when a judge of the High Court is satisfied, upon perusal of the record of the subordinate court, that neither the conviction nor the sentence imposed raises reasonable issue which can be argued on appeal. The grounds of appeal by the appellant raised the question of identification; that is always a question of law and takes away the power of the High Court to summarily reject an appeal.
Secondly the learned Judge of the High Court purported to reduced the sentence imposed when he (judge) purported to summarily reject the appeal. The very fact that the Judge thought the sentence ought to be reduced constituted a reason for admitting the appeal to hearing. We would respectfully point out to the learned Judge that there is no provision in the Criminal Procedure Code authorising the High Court to combine the provisions of section 352(2) with the revision provisions under section 362 of the Code. We are equally surprised that the Judge thought the sentence of five years imprisonment was harsh and excessive when the facts alleged and accepted by the magistrate and the Judge himself showed the appellant and his cronies were armed with guns when the alleged robbery occurred. We allow this appeal and set aside all the orders made by the Judge. We order that the appellant's appeal be admitted to hearing and thereafter be heard and determined according to law by the High Court. Those shall be our orders.
Dated and delivered at Nairobi this 15th day of January, 1997.
R.S.C. OMOLO
…………………………
JUDGE OF APPEAL
A.B. SHAH
………………………
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………….
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR