[2007] KECA 134 (KLR)
The Court of Appeal held that it was improper for the High Court to summarily dismiss the appellant's first appeal under section 352(2) of the Criminal Procedure Code when the appellant was represented by counsel who had filed a supplementary petition raising substantive legal issues, including the propriety of the...
Source-derived case information.
- Citation
- [2007] KECA 134 (KLR)
- Parties
- Appellant: Shadrack Omondi Malo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 399 of 2006
- Procedural Posture
- Criminal Appeal / Second Appeal From Summary Dismissal of First Appeal by High Court
- Outcome
- Appeal allowed; summary dismissal order set aside; matter remitted to High Court for hearing before a different judge.
- Judges
- AM Githinji
- Legal Topics
- Summary Dismissal of Appeal, Right to Be Heard, Defective Charge Sheet
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Omondi Malo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Summary Dismissal of First Appeal by High Court
Legal Issues
- 1 Whether the High Court erred in summarily dismissing the appellant's first appeal when he was represented by counsel.
- 2 Whether the appellant was denied the right to be heard on substantive legal issues, including the propriety of the charges.
Ratio Decidendi
The Court of Appeal held that it was improper for the High Court to summarily dismiss the appellant's first appeal under section 352(2) of the Criminal Procedure Code when the appellant was represented by counsel who had filed a supplementary petition raising substantive legal issues, including the propriety of the charges. The court emphasized that the right to be heard is fundamental, and summary dismissal in such circumstances amounts to a denial of justice. Accordingly, the summary dismissal order was set aside and the matter remitted to the High Court for hearing before a different judge.
Court Disposition
Appeal allowed; summary dismissal order set aside; matter remitted to High Court for hearing before a different judge.
Orders
- The appeal is allowed.
- The order of summary dismissal made on 15th August, 2006 is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Criminal Appeal 399 of 2006
SHADRACK OMONDI MALO …………....………………..APPELLANT
AND
REPUBLIC ……………………………………………….RESPONDENT
(An appeal from an order of the High Court of Kenya
Kisumu (Mwera, J.) dated 15th August, 2006
in
H.C.CR.A. NO. 220 OF 2005)
****************************
JUDGMENT OF THE COURT
This is a second appeal. The appellant was convicted for the offences of attempted defilement of a girl under the age of 16 years contrary to section 145 of the Penal Code and creating disturbance contrary to section 95(1) of the Penal Code and was thereafter sentenced to 10 years imprisonment with hard labour in the first count and 6 months imprisonment in the second count. The imprisonment terms were ordered to run concurrently. In his first appeal to the superior court, his main complaint in his home made grounds was that his conviction was based on insufficient and conflicting evidence. Subsequently he engaged counsel, one Ong’ele who filed a supplementary petition of appeal in which he raised, among other issues, that the charges were defective, and that the defence case not considered.
The appellant’s file was placed before Mwera, J. who after perusing the file summarily dismissed the appellant’s appeal pursuant to the provisions of section 352 (2) of the Criminal Procedure Code and thus provoked this appeal. Among the grounds raised in the appellant’s memorandum of appeal is that his appeal was improperly summarily dismissed, because he was represented by legal counsel who had filed a supplementary petition of appeal. Learned Senior Principal State Counsel, Mr. Musau concedes the appeal, quite properly so in our view because it is not usual to summarily dismiss an appeal under section 352 (2) CPC, where counsel appears for an appellant. Besides, an important legal point was raised with regard to the propriety of the charges as laid on which the appellant should have been heard.
In the circumstances we allow the appeal, set aside the order of summary dismissal made on 15th August, 2006, and direct that the appellant’s appeal to the High Court be admitted for hearing before a single Judge other than Mwera, J. Order accordingly.
Dated and delivered at Kisumu this 20th day of November, 2007.
P.K. TUNOI
……………….……..
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………
JUDGE OF APPEAL
E.M. GITHINJI
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR