Henry Momanyi Muchira v Republic

Court of Appeal, at Nakuru September 24, 2004

Githinji JA, Onyango Otieno & Deverell Ag JJ A

Criminal Appeal No 244 of 2003

Appeal from judgement of the High Court of Kenya at Nakuru (Rimita J) dated 21.9.2000 in HCCRAPP No 5 of 2000)

Criminal Practice and Procedure - appeal- summary rejection of an appeal- circumstances under which an appeal can be summarily rejectedsection 352(1) and (2) of the Criminal Procedure Code.

Criminal Practice and Procedure- appeal- summary rejection of an appeal- where an appellant alleges that the conviction was based on disputed evidence- whether such an appeal is premised on a point of lawwhether an appeal that raises a point of law can be disposed of summarily

The appellant was charged with five other persons with the offence of stealing by servant contrary to section 281 of the Penal Code. The fifth accused was charged with stealing contrary to section 275 and alternatively with handling stolen property contrary to section 322(2) of the Penal Code.

They pleaded not guilty but after full trial the appellant and four of his coaccused were convicted and sentenced to serve 12 months probation.

The appellant’s first appeal was summarily rejected by the High Court.

He brought this appeal against the decision.

Held:

1. Section 352(2) allows the superior court to reject an appeal summarily only when the appeal is brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive and the judge finds that the evidence adduced in the Court below is sufficient to support a conviction and he entertains no doubt that the conviction was right and the sentence was proper.

2. The appellant complained in the memorandum of appeal before the superior court, that the Magistrate’s Court misdirected itself in basing the conviction entirely on disputed evidence of the co-accused. That was clearly an appeal on a point of law and such a ground could not be disposed of summarily under section 352(2) of the Criminal Procedure Code.

3. The second ground of appeal warranted proper investigation by way of the appellant being accorded an opportunity of being heard in support of the same ground and thus on the entire appeal.

Appeal remitted to the High Court.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275, 281, 322(2)

2. Criminal Procedure Code (cap 75 section 352(1) (2)

Civil Practice and Procedure - decree - form of a decree - Civil Procedure Rules order 20 rule 6(1) - failure to include a valid decree in the record of appeal - decree a primary document not curable by amendment or by filing a supplementary record of appeal

Egerton University v Republic ex parte John K Ruga

Court of Appeal at Nakuru

September 24, 2004

Githinji JA

Civil Application No NAI 65 of 2004

(An application for extension of time to lodge an appeal, file and serve record of appeal from a ruling of the High Court of Kenya at Nakuru (Ondeyo J) dated October 4, 2002 in HC MISC C No 90 of 2002)

Civil Practice and Procedure – extension of time – time for lodging an appeal, filing and serving record of appeal – matters the court will consider in an application for extension of time.

The applicant, who intended to appeal against a decision of the High Court, filed a Notice of Appeal which was struck out for having been filed out of time. About five months later, the applicant brought this application seeking an extension of the time provided for lodging an appeal and for filing and serving the record of appeal.

Held:

1. The discretion of the Court to extend time is a discretion which is exercised judicially and there are matters which the Court will consider.

2. The Court was satisfied that the intended appeal was not frivolous.

3. Part of the delay had been adequately explained. The certificate of delay exonerated the applicant for the delay.

4. Even though there was a further delay of five months between the striking out of the Notice of Appeal and the bringing of this application, considering the nature and circumstances of the dispute and the previous proceedings, it would be in the interest of justice that the dispute between the parties should be conclusively and finally settled by allowing the applicant to file a competent appeal.

Application allowed with costs.

Cases

1. Odhiambo, James Herberts v Far East Chinese Medical Centre & another Civil Application No NAI 43 of 2002

2. Wasike v Swala [1984] KLR 591

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 4

2. Civil Procedure Rules (cap 21 Sub Leg) order LIII rule 7(1)

Advocates

Mr Otieno Olola for the Applicant

Civil Practice and Procedure - extension of time - time for filing notice of appeal - Court of Appeal Rules rules 4 - matters the court will consider in an application to extend time

Crime - robbery with violence contrary to Penal Code (Cap 63) section 296(2) - handling stolen property contrary to the Penal Code (Cap 63) section 322(2 - doctrine of recent possession - doctrine not excluded by the fact that the accused was not in actual physical possession - doctrine can apply where accused was in constructive possession.

Crime - robbery with violence contrary to Penal Code (Cap 63) section 296(2) - appeal against conviction - second appeal - second appellate court bound by concurrent findings of the trial court and first appellate court save in exceptional circumstances.

Civil Practice and Procedure - extension of time - time for filing appeal - Court of Appeal Rules rules 4 & 42 - matters the court will consider in an application to extend time

Crime - robbery with violence - conviction on a reduced charge of robbery - Penal Code (Cap 63) section 296(1),(2) - criminal practice and procedure - requirement that appeals by persons convicted for robbery with violence should be heard by two High Court judges - Criminal Procedure Code (Cap 75) section 359(1) - single judge erred in reducing charge of robbery with violence to simple robbery - judge ought to have asked another judge to sit with him.

Crime - robbery with violence - conviction on a reduced charge of robbery - Penal Code (Cap 63) section 296(1), (2) - criminal practice and procedure - requirement that appeals by persons convicted for robbery with violence should be heard by two High Court judges - Criminal Procedure Code (Cap 75) section 359(1) - single judge erred in reducing charge of robbery with violence to simple robbery - judge ought to have asked another judge to sit with him.

Crime - robbery - Penal Code (Cap 63) section 296(1) - procedure for hearing criminal appeals - Criminal Procedure Code (Cap 75) section 359(1) - appeals to be heard by two judges unless there is written authority from the Chief Justice directing that the appeal be heard by one judge - error for a single judge to hear such appeal without such authority - appeal to be reheard by a bench of two judges.