Lwengele v Republic

Court of Appeal, at Kisumu December 2, 1981

Madan, Law & Miller JJA

Criminal Appeal No 70 of 1981

Evidence - identification - conditions for identification - concurrent findings of fact - alibi - appellant accurately identified and seen at the scene of crime - whether his alibi defence can be displaced by the prosecution – identification parade.

The appellant with two others were convicted on two counts of robbery contrary to Section 296(1) of the Penal Code. Both victims identified the appellant at an identification parade. He pleaded an alibi. The trial magistrate held that the prosecution had proven their case beyond any reasonable doubt. The High court also upheld the conviction.

Held :

1. The appellant was properly convicted and sentenced.

2. The identification was accurate and the prosecution had proved its’ case beyond reasonable doubt.

Appeal dismissed.

Cases

No case referred to.

Statutes

1. Penal Code Section 296(1)

2. Criminal Procedure Code Section 352(1)

Ogaro v Republic

Court of Appeal, at Kisumu December 2, 1981

Madan, Law & Miller JJA

Criminal Appeal No 132 of 1981

(Appeal from the High Court at Kisumu, Scriven J)

Criminal law – stealing - offence of - contrary to section 280 of Penal Code (cap 63) – charge of – failure to prove value of thing stolen – effect of – whether such failure is fatal to charge – Criminal Procedure Code section 137(c)(i).

Judgment – form of – consideration of evidence in judgment – rejection of defence before setting out prosecution’s evidence – rule that judgment should comply with.

The appellant was convicted by a magistrate’s court of stealing contrary to section 280 of the Penal Code (cap 63). Among the findings of the High Court judge in the appellant’s first appeal were that to support a charge of theft, economic or pecuniary loss need not be proved and that the guilt of the appellant had nevertheless been proved beyond doubt even thought the trial magistrate’s judgment, by the order in which the evidence was set out, appeared to first reject the appellant’s defence before considering the prosecution’s evidence and not to state whether the magistrate had been satisfied of the appellant’s guilt beyond all reasonable doubt. The appellant appealed to the Court of Appeal.

Held:

1. It is a basic rule with which the form of a judgment should comply that an accused person must not be convicted of a criminal offence unless the court is satisfied that his guilt has been proved beyond reasonable doubt.

2. It is not fatal to a charge of stealing under section 280 of the Penal Code (cap 63) to omit to prove the value of the thing stolen.

3. The court could and did take judicial notice of the value of the allegedly stolen property.

4. The first appellate judge was aware of the short-comings in the trial magistrate’s judgment and put them right.

5. The court agreed with the finding of the judge on the first appeal that the appellant’s guilt had been proved beyond doubt.

Appeal dismissed.

Cases

Okethi Okale v R [1965] EA 559

Statutes

1. Penal Code (cap 63) sections 267(1), 268, 280

2. Criminal Procedure Code (cap 75) 137(c)(i)

Advocates

Mr Owino for Appellant

Walome v Republic

Court of Appeal, at Kisumu December 1, 1981

Law, Miller & Potter JJA

Criminal Appeal No 68 of 1981

Criminal practice and procedure - revisionary powers – exercise of principle on which discretion will be exercised by High Court and Court of Appeal - jurisdiction to entertain a matter which a High Court judge refused in the exercise of his discretionary powers.

The appellant was charged and convicted for stealing one head of cattle contrary to Section 275 of the Penal Code and was sentenced to nine months imprisonment. He did not appeal against the conviction but instead applied to the High Court for bail pending appeal and for the case to be disposed of on revision. The High Court judge held that the conviction was sound as there is no patent omission or misdirection on the magistrates part and dismissed the appeal, giving rise to this present appeal.

Held :

1. Revision is a discretionary remedy which if exercised, a right of appeal lies but where the judge declines to exercise this power there is no right of appeal.

2. An appellant had a right of appeal and cannot insist on revision especially where he is clearly proposing an appeal.

3. The High Court can exercise its’ revisionary jurisdiction sui motu, even if the aggrieved party has a right of appeal.

Appeal dismissed.

Cases

Republic v Asid Singh [1957] EA 88

Statutes

1. Penal Code (Cap 63) Section 275

2. Criminal Procedure Code (Cap 75) Section 361(7) & 364

F. N v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 71 of 1981

Children - under age accused (sixteen years) of murder – charge reduced to manslaughter - application of provisions of the Children and Young Persons Act Cap 141 - failure to alert the court of the age of accused.

The appellant aged sixteen years, threw a spear at the deceased in the throat killing him instantly. The appellant through his advocate accepted the facts as stated by the prosecution and pleaded guilty to manslaughter.

The trial judge was not alerted as to the age of the accused by both the prosecution and the accused’s counsel. The judge accepted his plea to the offence of manslaughter. He was convicted accordingly and sentenced to three years imprisonment.

Held :

1. Where it is established that the accused person was below sixteen years old at the commission of the offence, the Judge must take into consideration the provisions of the Children and Young Persons Act. If it is not clear from the record whether the Judge did take account of the Act when sentencing the appellant.

2. Sentence set aside and the accused released from the prison with immediate effect.

Cases

No case referred to.

Statutes

Children & Young Person’s Act (Cap 141)

Wambura v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 53 of 1981

Appeal - summary rejection - practice to be followed in considering rejection of appeal.

The appellant was charged with stealing stock contrary to Section 278 of the Penal Code and his appeal to the High Court was rejected summarily.

Held :

1. Summary rejection should not be used when a question of identification of stolen property is raised, unless it is so clearly a frivolous ground of appeal as to be totally in-effective.

2. The Judge erred in summarily rejecting the appeal. The power of summary rejection of criminal appeals must follow the practice set out in Obiri v Republic Criminal Appeal No 58 of 1981.

Appeal allowed, conviction quashed.

Cases

Obiri v Republic (Criminal Appeal No 58 of 1981)

Statutes

1. Criminal Procedure Code (Cap 75) Section 352(2)

2. Penal Code Section 278

Editorial Note

Section 278 of The Penal Code has since been repealed but principles set out on summary rejection are still relevant.

Obiri v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 58 of 1981

Appeal - summary rejection of appeal under Section 352(2) of the Criminal Procedure Code - summary rejection where it appears that the grounds of appeal raise valid points of law which can only be determined at a hearing - when can a court exercise its power of summary rejection.

Evidence - accomplice evidence - definition of an accomplice.

The appellant was convicted of stealing by the trial court. His appeal to the High Court to summarily rejected and he subsequently made this second appeal.

Held :

1. Where the memorandum of appeal raises valid points of law, the power of summary rejection of an appeal must not be exercised as such points can only be determined at a full hearing.

2. It is in the interest of justice to have a hearing where points of Law are raised.

3. The power of summary rejection should be exercised very sparingly, and only in the clearest of cases such as where there is an equivocal plea of guilty by the accused.

4. The object of the power of summary rejection is to save time and when this power is exercised in non clear cases this object is defeated.

5. An accused person who was at the crime scene but found not to have been involved in the crime is not an accomplice and his evidence is not accomplice evidence.

Appeal dismissed, sentence not excessive.

Cases

Wakelin v Rex [1951] 18 EACA

Statutes

Criminal Procedure Code Section 352(2)

Okito v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 47 of 1981

Criminal practice and procedure - practice to be followed before an appeal is summarily rejected - object of summary rejection - reasons for summary rejection procedure.

Evidence - insufficient evidence against accused - burden of proof - failure to call witnesses - failure by police to give evidence of investigations - circumstantial evidence.

The appellant was convicted for stealing, his appeal to the High court was summarily rejected.

He made a second appeal to the Court of Appeal.

Held :

1. The power of summary rejection of an appeal should be exercised as set out in Obiri v Republic. In setting out at great length the reasons for summary rejection of the appeal instead of usual rejection, the learned judge defeated the object of Section 352 (2). In such a case the judge should have done this in open court.

2. A Judge cannot make any suggestions in the judgment of facts not established in evidence.

3. One cannot be convicted merely upon circumstantial evidence when the court has neither considered nor decided that such evidence was compatible only with guilt of the accused and unexplainable upon any other innocent hypothesis.

4. The judge cannot shift the onus, on the appeal, based on a fact which the appellant was not given the opportunity to call witnesses.

5. The conviction is quashed and the sentence set aside.

Appeal allowed.

Cases

1. Obiri v Republic (Criminal Appeal No 58 of 1981)

2. Wambura v Republic (Criminal Appeal No 53 of 1981)

Statutes

1. Criminal Procedure Code Section 352(2)

2. Penal Code Section 281

Ombena v Republic

Court of Appeal, at Kisumu June 23, 1981

Law, Miller & Potter JJA

Criminal Appeal No 36 of 1981

Appeal - summary rejection under Section 352(2) CPC by High Court - appeal against summary rejection - no summary rejection if points of law are raised.

Plea Recording - the steps and manner of recording pleas - plea taking - six counts but only one plea is recorded - unequivocal plea.

Conviction - entered by magistrate before hearing and recording the facts of the case - statement of facts should precede conviction.

The appellants were convicted at the magistrates court for selling goods over the maximum price and failing to display a price list contrary to the Price Control Act (Cap 504). They had appealed to the High Court on grounds that; only one plea was recorded yet there were six counts; that the plea entered was unequivocal and that the magistrate convicted them without hearing and recording the facts of the case. This appeal was summarily rejected by the High Court. They have now appealed against this summary rejection on the ground that, their appeal and should have been summarily rejected.

Held :

1. That the appeal to the High Court raised points of Law and should not have been summary rejected.

2. It is good practice for the trial court to record a plea on each count separately. This is necessary so that the accused understands and applies his mind to each count when he makes his plea.

3. That the decision as to whether the plea was unequivocal or not depends on the circumstances of each case. In this case it was clearly unequivocal as translation was properly given.

4. The prosecutor in stating that “facts are as per charge sheets” was an error. This court cannot be satisfied on that basis that the accused knew what he was pleading guilty to.

5. The statements of facts must be explained to the accused, it enables him to understand the charges against him.

6. The power of summary rejection under Section 352(2) should only be used where it is absolutely certain that there is no ground of appeal. In this particular case there is a ground of appeal, therefore, it falls outside the ambit of this subsection.

Appeal allowed, sentence set aside and moneys paid as fines be repaid.

Cases

1. Wakelin v Rex [1951] 18 EACA 185

2. Adan v Republic [1973] EA 445

Statutes

1. Price Control Act (Cap 504) Section 26(1)

2. Criminal Procedure Code Section 352(2)

Achieng v Republic

Court of Appeal, at Kisumu June 22, 1981

Law, Miller & Potter JJA

Criminal Appeal No 19 of 1981

Judgment - guidelines in writing judgments - in the judgment the trial magistrate examined the defence case before examining the prosecution case - defects in judgment that do not occasion injustice - Burden of proof - failure to make reference to the burden of proof in criminal cases in the judgment.

Appeal - remand - powers of the appellate court thereto – court of appeal discretion to opt not to reject a matter but to hear it itself - summary rejection of an appeal within Section 352 of the Criminal Procedure Code.

Evidence - evidence of identification parade - evaluation of - corroboration

The appellant was convicted of robbery. His appeal to the High Court was summarily rejected. He now appeals on the grounds that the appeal should not have been summarily rejected as it raised several points of law and that evidence of the complainant, had been relied on without corroboration.

Held :

1. The judge cannot look at the defence case only to make his findings in the judgment, the defence and prosecution evidence must be evaluated as a whole. The judge in this case acted wrongly by examining the defence case before examining the prosecution case. However where the magistrate subsequently evaluates the case again and there has been no miscarriage of justice, this may be overlooked.

2. Omission of reference to the burden of proof in the judgment is unprocedural.

3. Summary rejection of appeals should be restricted to those that fall within the provisions of Section 352(2) of the Criminal Procedure Code. The Court of Appeal has the power in such case remand the matter to the High Court, but it can also exercise its discretion not to remand the case where it was not practically possible and instead hear the matter itself.

4. Where an identification parade was held, the officer who conducted it must be questioned about it. Where such an officer is not so questioned, the evidence of identification can still be accepted as reliable if there is other evidence such as finding of goods in the possession of the appellant.

5. The appellant was properly convicted.

Appeal dismissed.

Cases

Okethi Okale & others v Republic [1965] EA 555

Statutes

1. Penal Code (Cap 63) Section 296(1)

2. Criminal Procedure Code (Cap 75) Section 352(2)

Advocates

Mr Owino for Appellant

Mr Mugu Senior State Counsel for Respondent

Owili v Republic

Court of Appeal, at Kisumu June 18, 1981

Law, Miller & Potter JJA

Criminal Appeal No 1 of 1981

Memorandum of Appeal - ground of appeal - grounds with noparticulars.

The appellant was convicted under Section 49(1) of the Traffic Act Cap 403. His appeal was summarily rejected but the Court exercised its revisionary powers and set aside the fine and substituted it with an absolute discharge, conditional upon payment of the costs towards prosecution.

The appellant has now appealed against this one ground that the judge erred in not observing the provisions of Section 77(2)(c) & (d) of the Constitution.

Held :

1. The ground of appeal, bereft of particulars is no ground at all. It is meaningless and ineffective and it was rightly ignored by the judge.

2. The appeal was rightly summarily rejected as there was ample evidence to support the conviction.

Appeal dismissed.

Cases

Wallace v Reginam [1958] EA 582

Statutes

1. Traffic Act Cap 403 Section 49(1)

2. Constitution of Kenya Section 72 (2)(c) & (d)

Advocates

DA Owino for Appellant

EN Mugu for Respondent