[1984] KECA 90 (KLR)
The Court of Appeal held that the additional grounds raised by the appellant did not raise any issue of law, and therefore, the summary dismissal of the appeal by the High Court was correct under section 352(2) of the Criminal Procedure Code. The sentence imposed was within the law for the offence of defilement, and...
Source-derived case information.
- Citation
- [1984] KECA 90 (KLR)
- Parties
- Appellant: Waruingi Gikuma; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 52 of 1984
- Procedural Posture
- Criminal Appeal / Second Appeal, Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Defilement, Sentencing, Appeals on Sentence, Summary Dismissal, Criminal Procedure, Grounds of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waruingi Gikuma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal, Judgment
Legal Issues
- 1 Whether the sentence imposed for defilement was harsh and manifestly excessive.
- 2 Whether the High Court erred in summarily dismissing the appeal under section 352(2) of the Criminal Procedure Code.
- 3 Whether there was a right of appeal on the grounds raised by the appellant.
Ratio Decidendi
The Court of Appeal held that the additional grounds raised by the appellant did not raise any issue of law, and therefore, the summary dismissal of the appeal by the High Court was correct under section 352(2) of the Criminal Procedure Code. The sentence imposed was within the law for the offence of defilement, and the appellant, despite his advanced age, committed an offence that warranted the severest punishment provided by law. There was no basis for interfering with the sentence, and the appeal was dismissed accordingly.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Kneller, J A, Chesoni and Nyarangi, Ag JJ A)
CRIMINAL APPEAL NO 52 OF 1984
BETWEEN
WARUINGI GIKUMA …………………. APPELLANT
AND
REPUBLIC …………………………… RESPONDENT
(Appeal from an order of the High Court of Kenya at Nakuru (Masime J) dated 23rd February 1984 IN High Court Criminal Appeal No 322 of 1983)
JUDGMENT OF THE COURT
The appellant, now aged 71 years, pleaded guilty to a charge of defilement of a girl contrary to Section 145(1) of the Penal Code. He was sentenced to 7 years’ imprisonment plus 7 strokes. The complainant was then aged 51/52 years. His appeal to the High Court (Masime J) was summarily dismissed. The appeal is only against sentence.
The initial ground of appeal is that, the sentence is harsh and manifestly excessive and should be substituted by a probation order. The appellant’s additional hand-written grounds are that the evidence on the complainant’s injuries was contradictory, that there was no evidence of sexual intercourse and that the doctor’s evidence was not considered. Learned principal state counsel argued that there is no right of appeal. This second appeal can only be brought on grounds of law.
The additional grounds do not raise any issue of law because the summary dismissal under section 352(2) of the Criminal Procedure Code is correct. The sentence is a legal one. The appellant, notwithstanding his age, committed an offence which causes horror and revulsion.
He richly deserved the severest possible punishment provided by law.
The appeal is dismissed. That is the order of the court.
Dated at Nakuru this 25th day of September 1984.
A A KNELLER
……………………….
JUDGE OF APPEAL
Z R CHESONI
………………………
AG JUDGE OF APPEAL
J O NYARANGI
………………………….
AG JUDGE OF APPEAL
I certify that this is a true copy of the original
…………………………
DEPUTY REGISTRAR