Case Metadata |
|
| Case Number: | Criminal Appeal 60 of 1993 |
|---|---|
| Parties: | Ayuaya v Republic |
| Date Delivered: | 26 Nov 1993 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Kisumu |
| Case Action: | Judgment |
| Judge(s): | Johnson Evan Gicheru, Akilano Molade Akiwumi, Philip Kiptoo Tunoi |
| Citation: | Ayuaya v Republic [1993] eKLR |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Kisumu |
| Case Summary: | 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. Held: 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. Appeal allowed. Cases Nguraiya George & another v Republic Criminal Appeal No 28 of 1992 Statutes 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) |
| Case Outcome: | Appeal allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Gicheru, Akiwumi & Tunoi JJ A)
CRIMINAL APPEAL NO 60 OF 1993
AYUAYA…………..........….…APPELLANT
VERSUS
REPUBLIC……..........…….RESPONDENT
(Appeal from the Judgement of the High Court at Kisumu
(Mango J) in HCCC No.162 of 1992 delivered on June 28,1993)
Dated and Delivered at Kisumu this 26th Day of November, 1993
JUDGMENT
On the 21st June, 1993 the Resident Magistrate at Nyando (Mr Kiarie) convicted the appellant on his own plea of guilty on the offence of being in possession of cannabis sativa (bhang) contrary to section 10 (e) as read with section 18 (2) of the Dangerous Drugs Act Cap 245 of the Laws of Kenya and sentenced him to 12 months’ imprisonment. His appeal to the High Court of Kenya at Kisumu was summarily rejected on 28thJune 1993 by Mango, J purportedly under section 352 (2) of the Criminal Procedure Code. Against that summary rejection he has preferred an appeal to this Court.
The High Court’s jurisdiction to dismiss an appeal summarily under the aforementioned section 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. See the case of George Nguraiya and Another v Republic Criminal Appeal No 28 of 1992 (unreported). But once a petition of appeal goes beyond the conviction being against the weight of the evidence or the sentence being excessive that Court in its appellate jurisdiction cases to have jurisdiction under section 352 (2) of the Criminal Procedure Code.
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. Indeed, some of them concerned the first appellate judge’s failure to detect defects in taking of the plea in the trial Magistrate’s Court and that the purported plea of guilty was equivocal.
In our view, the High Court in its appellate jurisdiction was not competent to deal with the appellant’s appeal summarily. That appeal’s summary rejection was therefore wrong. Accordingly we allow the appellant’s appeal to this court, set aside the orders of the High Court summarily rejecting his appeal to that Court.
Under section 3(2) of the Appellate Jurisdiction Act Cap 9 of the Laws of Kenya, we will dispose of this appeal once and for all.
The plea as it stood in the trial Magistrate’s Court was defective in that the facts were never narrated to that court nor were they put to the appellant. In the circumstances the plea should not have been construed as being unequivocal admission of guilt of the offence charged.
We would allow this appeal. We quash the conviction and set aside the sentence of imprisonment and order that the appellant shall be entitled to his liberty fourthwith unless otherwise lawfully held.
Dated and Delivered at Kisumu this 26th day of November, 1993
J.E. GICHERU
………………………….
JUDGE OF APPEAL
A.K. AKIWUMI
………………………….
JUDGE OF APPEAL
P.K.TUNOI
………………………….
JUDGE OF APPEAL
Please Wait. Searching ...