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Court of AppealDismissedCriminal Appeal 65 of 1994

Simon Kimeli Sawe v Republic [1994] KECA 32 (KLR)

Court of Appeal of Kenya
27 September 1994
RKR. O. KwachMMM. G. MuliPhilip Kiptoo TunoiP. K. Tunoi
205 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that first appeals raising no point of law can be lawfully thrown out without a full hearing.

What this practically means

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Executive summary

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The appellant was convicted on his own plea of guilty of defilement of a girl contrary to section 145(1) of the Penal Code and sentenced to 7 years imprisonment with 8 strokes of the cane. His first appeal to the High Court of Kenya at Eldoret (Aganyanya J) was summarily rejected under section 352(2) of the Criminal Procedure Code on 21st July 1993. He appealed to the Court of Appeal at Nakuru against that summary rejection. In a short judgment delivered by the full bench of Kwach, Muli and Tunoi JJA on 27th September 1994, the Court of Appeal held that the appeal lacked merit because no issue of law had been raised, consistent with the settled position that a second appellate court concerns itself only with matters of law. The court found that the summary rejection by the High Court was perfectly proper having regard to the grounds of appeal that had been before that court. The appeal was accordingly dismissed. No costs order was made and no separate or dissenting opinions were delivered; the judgment was that of the whole court. The judgment affirms the propriety of summary rejection under section 352(2) where the grounds of appeal disclose no arguable issue of law. No external authorities were cited in the judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court's summary rejection of the appellant's first appeal under section 352(2) of the Criminal Procedure Code was proper
  2. 2.Whether any issue of law was raised in the appeal to the Court of Appeal

Key legal issues

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01

Propriety of summary rejection under section 352(2) of the Criminal Procedure Code

Holding

The summary rejection of the appellant's first appeal by the High Court was proper because the grounds of appeal raised no issue of law

Reasoning

The appellant had pleaded guilty to defilement under section 145(1) of the Penal Code and was sentenced to 7 years imprisonment with 8 strokes of the cane. His first appeal to the High Court was summarily rejected under section 352(2) of the Criminal Procedure Code. On second appeal, the Court of Appeal found no issue of law had been raised, and held that the summary rejection was perfectly proper in light of the grounds of appeal that had been before the High Court. The appeal was accordingly dismissed.

p. 1

Legal principles established

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  • A summary rejection of an appeal under section 352(2) of the Criminal Procedure Code is proper where the grounds of appeal disclose no issue of law

Court orders

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  1. 1.The appeal was dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
MM
majority
Philip Kiptoo Tunoi
majority
On appeal from
High Court of Kenya at Eldoret
H.C.Cr.A. No. 58 of 1993
Jurisdiction invoked
Second appeal to the Court of Appeal against summary rejection of a first appeal under section 352(2) of the Criminal Procedure Code

Relief refused

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The appellant's appeal against the summary rejection of his first appeal

No issue of law was raised and the summary rejection was proper given the grounds of appeal before the High Court

p. 1

Costs

No costs order was made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There is no merit in this appeal as no issue of law has been raised.
p. 1Second appeal - no issue of law
The summary rejection was perfectly proper having regard to the grounds of appeal before the High Court. We accordingly dismiss the appeal. That is the order of the Court.
p. 1Final orders - summary rejection affirmed and appeal dismissed

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Kimeli Sawe v Republic [1994] KECA 32 (KLR)", Case Analysis (1994). Criminal Appeal 65 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/32/eng@1994-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.