Ayuaya V Republic  EKLR
|Criminal Appeal 60 of 1993||26 Nov 1993|
Johnson Evan Gicheru, Akilano Molade Akiwumi, Philip Kiptoo Tunoi
Court of Appeal at Kisumu
Ayuaya v Republic
Ayuaya v Republic  eKLR
Ayuaya v Republic
Court of Appeal, at Kisumu November 26, 1993
Gicheru, Akiwumi & Tunoi JJ A
Criminal Appeal No 60 of 1993
(Appeal from the Judgement of the High Court at Kisumu
(Mango J) in HCCC No.162 of 1992 delivered on June 28,1993)
Criminal practice and procedure – appeals – summary rejection of appeal – whether High Court has jurisdiction to summarily dismiss an appeal which goes beyond the claim that conviction is against the weight of evidence – section 352 (2) Criminal Procedure Code.
The appellant was convicted on his own plea of guilty on a charge of being in possession of cannabis sativa contrary to sections 10(e) and 18(2) of the Dangerous Drugs Act. He appealed to the High Court against his conviction and sentence claiming that the plea was unequivocal and defective in that the prosecution had neither narrated the facts of the charge to the court nor put the facts to him.
The High Court summarily rejected the appeal exercising its jurisdiction under section 353(2) of the Criminal Procedure Code. The appellant then brought this second appeal.
1. The High Court’s jurisdiction to dismiss an appeal summarily under section 352(2) of the Criminal Procedure Code arises only when, in the opinion of the first appellate judge, the evidence before the trial court leaves no reasonable doubt as to the appellant’s guilt, and that the appeal is manifestly frivolous, or without substance.
2. Once a petition of appeal goes beyond the conviction being against the weight of the evidence or the sentence being excessive the High Court in its appellate jurisdiction ceases to have jurisdiction under section 352 (2) of the Criminal Procedure Code.
3. In the petition of appeal to the High Court, the appellant put forward three grounds of appeal which were not confined to the appellant’s conviction being against the weight of the evidence or the sentence being excessive.
4. The plea before the trial court was defective in that the facts were neither narrated to that court nor put to the appellant. In those circumstances the plea should not have been construed as being an unequivocal admission of guilt.
Nguraiya George & another v Republic Criminal Appeal No 28 of 1992
1. Dangerous Drugs Act (cap 245) sections 10,18(2)
2. Criminal Procedure Code (cap 75) section 352(2)
3. Appellate Jurisdiction Act (cap 9) section 3(2)