[1995] KECA 39 (KLR)
The Court of Appeal found that the grounds of appeal raised by the appellant before the High Court were not confined to the two matters under section 352(2) of the Criminal Procedure Code, namely, that the conviction is against the weight of evidence or that the sentence is excessive. Instead, the grounds included...
Source-derived case information.
- Citation
- [1995] KECA 39 (KLR)
- Parties
- Appellant: Wesley Tuitok Kipngok; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 74 of 1994
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
- Outcome
- Appeal allowed; summary rejection set aside; matter remitted to High Court for hearing before a different judge.
- Judges
- JM Gachuhi, AB Shah
- Legal Topics
- Plea Taking Procedure, Right to Interpreter, Summary Rejection of Appeal, Elements of Stealing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wesley Tuitok Kipngok
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeal by High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellant's appeal under section 352(2) of the Criminal Procedure Code.
- 2 Whether the grounds of appeal raised issues beyond those permitted for summary rejection under section 352(2).
- 3 Whether the appellant's rights regarding plea taking and interpretation were observed.
Ratio Decidendi
The Court of Appeal found that the grounds of appeal raised by the appellant before the High Court were not confined to the two matters under section 352(2) of the Criminal Procedure Code, namely, that the conviction is against the weight of evidence or that the sentence is excessive. Instead, the grounds included procedural irregularities in plea taking, failure to explain the charge, and denial of the right to an interpreter, which are substantive legal issues requiring a full hearing. Therefore, the High Court erred in summarily rejecting the appeal. The Court of Appeal allowed the appeal, set aside the summary rejection, and remitted the matter to the High Court for hearing before a...
Court Disposition
Appeal allowed; summary rejection set aside; matter remitted to High Court for hearing before a different judge.
Orders
- The appeal is allowed.
- The order summarily rejecting the appeal is set aside.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
CRIMINAL APPEAL 74 OF 1994
WESLEY TUITOK KIPNGOK……………………APPELLANT
AND
REPUBLIC……………...........................………RESPONDENT
(Appeal from a judgment of the High Court at Nakuru (Mr. Justice D. M. Rimita) dated
18th February, 1994
IN
H.C.CR.A. NO. 418 OF 1993
************************
JUDGMENT OF THE COURT
The appellant Wesley Tuitok Kipngok was convicted on his own plea by the Resident Magistrate, Molo, of the offence of stealing contrary to Section 275 of the Penal Code and sentenced to 2 years imprisonment. His advocate, Mr. Mirugi Kariuki, filed his petition of appeal in the High Court of Kenya at Nakuru on December 7, 1993. The main grounds thereof were that the trial magistrate misdirected himself on the procedure for taking pleas as laid down in the case law; that the elements of the charge of stealing contrary to Section 275 of the Penal Code were not explained to the appellant; that the appellant might not have understood the language of the Court and that it was an error in law not to provide him with an interpreter; and finally that the facts as stated by the prosecutor did not disclose an offence of stealing upon which the appellant could be convicted. In February 1994, Rimita J. summarily rejected the appeal under section 352(2) of the Criminal Procedure Code.
An appeal falls within Section 352(2) only if the ground of appeal raises any or both of the following points:-
1. the conviction is against the weight of evidence, or
2. the sentence is excessive.
On our part we have considered the petition of appeal of the appellant and it is clear that the grounds of appeal before the High Court were not confined to the two matters under section 352(2) aforesaid for which an appeal may be summarily rejected. We allow the appeal; set aside the order summarily rejecting the appeal and remit it to the High Court at Nakuru with the direction that the appeal be admitted to hearing by a judge other than Rimita J.
We so order.
Dated and delivered at Nakuru this 21st day of February, 1995.
J. M. GACHUHI
…………………….
JUDGE OF APPEAL
P. K. TUNOI
…………………….
JUDGE OF APPEAL
A.B. SHAH
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR