Lwengele & another v Staff Counsel [1990] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal set aside criminal sentences because the appeal record was missing the judge's summing-up notes, and ordered a retrial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal is incomplete and defective for omission of the summing up notes
- 2.Whether section 322(1) of the Criminal Procedure Code was complied with
Key legal issues
#Completeness of the record of appeal
The record was defective because the summing up notes were omitted, contrary to the Court's rules and section 322(1) of the Criminal Procedure Code.
The court treated the question as short and easy. A record lacking the summing-up notes denies the appellate court the material needed to review the trial, and section 322(1) of the Criminal Procedure Code was not complied with. The defect was therefore incurable on the record as presented, requiring the convictions to be queried and sentences set aside with a direction for retrial.
Legal principles established
#- An appellate record that omits the summing-up notes is incomplete and defective, and non-compliance with section 322(1) of the Criminal Procedure Code vitiates the appeal record.
Court orders
#- 1.Convictions queried and sentences set aside
- 2.Case to be retried before some judge, to be given highest priority
- 3.Appellants to be kept in custody until the date of the re-trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Court of Appeal appellate criminal jurisdiction under the Criminal Procedure Code (record-of-appeal rules, section 322(1))
Relief refused
#Immediate release of the appellants
Appellants remanded in custody pending re-trial, given they had been in custody since April 1984
Costs
No order as to costs recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The record of appeal before us is incomplete and, having regard to our rules, defective.
The summing up notes are not included in the record of appeal, and section 322 (1) of the Criminal Procedure Code was not complied with.
It follows that the convictions are queried and the sentences set aside.
In the meantime the appellants shall be kept in custody until the date of the re-trial.
Issues in the judgment
#The judgment states the case should be re-tried before some judge but gives no reasons for querying the convictions beyond the defective record; the disposition is tersely stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lwengele & another v Staff Counsel [1990] KECA 38 (KLR)", Case Analysis (1990). Criminal Appeal No 23 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/38/eng@1990-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.