[1951] EACA 185

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

## V. WAKELIN, Appellant

$\mathbf{v}$

## REX. Respondent

## Criminal Appeal No. 32 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya (Appellate Side)-Modera, $J.$ )

Unequivocal plea of guilty—Appeal against conviction—Kenya Criminal Procedure Code, section 352 (2).

The appellant pleaded guilty in writing to two offences under the Traffic Ordinance and was convicted by the First Class Magistrate's Court in Nairobi. He failed to appeal in time and applied for leave to appeal out of time. His application was heard and allowed by two Judges. The appeal was then considered by a Judge in Chambers (one who had allowed his application for leave) and summarily dismissed under section 352 (2) of the Kenya Criminal Procedure Code. The grounds of appeal included one against sentence and another that the Magistrade erred in construing the appellant's plea as an unequivocal plea of guilty. It was contended before the E. A. C. A. that the Supreme Court Judge could not adjudicate until he had given the appellant or his advocate an opportunity of being heard.

*Held* (25-6-51).—In the circumstances the plea was clearly an unequivocal plea of guilty and<br>an appeal against conviction did not lie. The E. A. C. A. proceeded to discuss the value<br>of section 352 of the Criminal Procedure C

Appeal dismissed.

Kapila for appellant.

Templeton, Crown Counsel, Kenya, for the Crown.

JUDGMENT.—This is a second appeal from a conviction of two offences under the Traffic Ordinance entered against the appellant by the First Class Magistrate in Nairobi. The appellant failed to appeal to the Supreme Court within time, but an application for leave to appeal out of time was heard and allowed by two Judges sitting in appellate jurisdiction. Instead of proceeding to hear and determine the appeal on its merits as the Court might have done it required the appellant to lodge his appeal before a Judge in Chambers to ascertain in the usual way whether the appeal should be admitted to hearing. In accordance with this order the record was subsequently perused by one of the Judges who had allowed the application for leave to appeal out of time and he came to the conclusion that the appeal had been lodged without any sufficient ground of complaint. He accordingly dismissed it summarily under the provisions of section 352 (2) of the Kenya Criminal Procedure Code. It is now contended before us that the learned Judge in so doing acted in excess of jurisdiction. Under section 352, every petition of appeal entered under section 350 must be perused by a Judge who may if he considers that there is no sufficient ground for interfering, reject the appeal summarily. This right of summary rejection is subject to qualification. A Judge cannot, under the proviso to sub-section (1) of the section reject an appeal summarily without giving the appellant or his advocate

the opportunity of being heard in support of the appeal, unless the appeal conforms with the conditions set out in sub-section $(2)$ . These are $(a)$ that the ground of appeal is that the conviction is against the weight of evidence, or $(b)$ that the sentence is excessive. In the case now before us the appeal was against both conviction and sentence and the ground of appeal against conviction was not that the conviction was against the weight of evidence but on other grounds which are set out in the Memorandum of Appeal dated 24th January, 1951. One of these grounds was that the Magistrate had erred in construing the plea of the appellant as an unequivocal plea of guilty. It was this ground which caused the learned Judge who perused the record to make the order which he did, because on the back of the summons requiring his attendance the appellant signed a statement to the effect that he pleaded guilty to the two offences set out in the summons which were that he had driven his motor vehicle in a manner dangerous to the public and that at the time the vehicle was unlicensed. The learned Judge accordingly having in mind, as he must have had, the provisions of section 348 (1) which states that no appeal against conviction shall be allowed in the case of any accused person who has pleaded guilty, dealt summarily only with that part of the appeal which was directed against the extent of the sentence. So far as the appellant's appeal against sentence was concerned the learned Judge acted within his jurisdiction in dismissing the appeal summarily. It is submitted, however, by Mr. Kapila that as it was one of the grounds of appeal that the Magistrate wrongly construed the appellant's plea as a plea of guilty this was a ground of appeal against conviction on which the learned Judge could not adjudicate until at least he had given the appellant or his advocate an opportunity of being heard. In other words that an allegation that a plea has been wrongly construed and given an effect which is not in accord with law, is itself a point of law which cannot be summarily dismissed. We agree that where a plea contains any ambiguity or explanation, the proper construction to be put upon it is a matter of law, but we consider that in the circumstances of this case, to accede to counsel's ingenious submission would be to make nonsense both of the provisions of section 348 (1) and of the English language. This is not the case of an illiterate African replying through an interpreter to a charge and using words indicative. of guilt but capable also of an innocent meaning or suggestive of the possibility that he did not understand the full implication of the offence charged. Here the appellant who is described as a European was able to read and write the English language and he was served with a summons which contained full particulars of the two charges he was called upon to meet. We have seen the actual summons and we note that at the foot of it appears the following printed in bold type:-

"Your personal attendance will not be necessary if you plead 'Guilty' in writing (or appear by an advocate)."

On the back of the summons in the same handwriting as the appellant's. signature appears the following: —

"I plead guilty of the two offences as given above and over the page."

The appellant did not appear in Court on the date fixed for the hearing of of the charges either in person or by an advocate, and the learned Magistrate, as he was entitled to do by reason of the endorsement on the summons and the provisions of section 99 (1) of the Criminal Procedure Code, proceeded to conviction and sentence. It was one of the grounds of appeal in the Court below that the learned Magistrate erred, in that, before passing sentence he allowed the Police Prosecutor to read certain statements of persons who had witnessed. the appellant's driving of his motor vehicle. In view of the appellant's admission on the back of the summons there was nothing improper in this procedure. It was.

at the appellant's own election that he did not attend the Court and give his account of the incident. Under these circumstances we consider that the learned Judge was perfectly right in concluding that there had been an unequivocal plea of guilty and that therefore an appeal against conviction did not lie. This was patent on the face of the record and it would have been a waste of judicial time had the learned Judge decided to hear the appellant or his advocate on the point. This being the position, the other grounds stated in the Memorandum of Appeal so far as they constituted grounds of appeal against conviction did not arise since the appeal itself did not lie.

As to the learned Judge's summary rejection of the appellant's appeal against sentence on the ground that it was excessive we are not prepared to say that he exercised his discretion wrongly. Having perused the record he came to the opinion, as he was entitled to do, that there was no material before him to lead him to the opinion that the sentences ought to be reduced.

We accordingly dismiss this appeal.

We should like to add this. Although it is not the function of this Court to criticize the format of legislation, we are of course aware that the Criminal Procedure Codes in East Africa are amended from time to time when experience shows that amendment is desirable. We recommend accordingly to those whose business it is to study such matters the question whether under conditions now obtaining in Kenya the existence of section 352 in the Code really serves any useful purpose. If the object of the section is to save time the present case is a good example of how easily that object can be defeated. Furthermore we should have thought, that where an appeal is brought either against conviction or sentence. when on the face of it the appeal appears frivolous or without merit, the appeal could be disposed of just as expeditiously by two Judges or one Judge, as the case may be, sitting in open Court, as by a single Judge perusing the record in his Chambers, Again the proviso to sub-section (1) of the section is not without ambiguity or indeed inherent danger. If a Judge desires to reject an appeal summarily but there is a ground of appeal stated which takes it outside the provisions of sub-section (2), does he, under the proviso to sub-section (1) have to require the appellant or his advocate to attend on him in Chambers or does he hear the matter in open Court? If the latter, this would in effect constitute a hearing of the appeal, and would thus cut across the provisions of section 358 which requires that two Judges of the Supreme Court should sit together to hear an appeal from a Subordinate Court, unless the Chief Justice directs that the appeal may be heard by a Judge sitting alone. If the former it seems to us that this in effect would constitute the hearing of an appeal in a Judge's chambers which we consider is open to objection.