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Court of AppealAllowedCriminal Appeal No. 7 of 2013· [2014] KECA 382 (KLR)

Charles Mulama & 1 other v Republic

Court of Appeal of Kenya
19 September 2014
JOJ. W. Onyango OtienoFAF. AzangalalaSKS. ole Kantai
1,041 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled judges can only dismiss criminal appeals without a hearing when appeals claim bad evidence or excessive sentences, nothing more.

What this practically means

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Executive summary

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The appellants were convicted by the Chief Magistrate's Court at Kakamega of assault causing actual bodily harm and malicious damage to property, and sentenced to fines with default imprisonment terms. Their first appeal to the High Court (HCCRA No. 147 of 2010) was summarily rejected in chambers by Lenaola, J under section 352(2) of the Criminal Procedure Code, certifying that the appeal was lodged without sufficient grounds. The appellants then appealed to the Court of Appeal, contending that the judge failed to consider the legal grounds in their petition and failed to comply with section 352(3) of the Criminal Procedure Code. Before the Court of Appeal, counsel for the appellants and the State - the Assistant Director of Public Prosecutions who ultimately conceded the appeal - agreed that the petition raised weighty issues of law and fact that should not have been disposed of summarily. The court, applying its 1983 decision in Aggrey v Republic, reaffirmed that the power of summary rejection under section 352(2) is strictly confined to appeals claiming that a conviction is against the weight of evidence or that a sentence is excessive. Because the petition of appeal also raised material conflicts in prosecution evidence, shifting of the burden of proof, ignored defences and erroneous sentences, the court held that the High Court judge erred in summarily rejecting the appeal. The appeal was allowed and the matter remitted to the High Court with an order that the appeal be admitted to hearing. This decision binds subordinate courts and the High Court on the limited scope of the section 352(2) summary-rejection power.

Key legal issues

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01

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

Holding

A judge may only summarily reject an appeal under section 352(2) where the appeal is brought solely on the grounds that the conviction is against the weight of evidence or the sentence is excessive; where the petition raises arguable matters of law, the appeal must be admitted to hearing.

Reasoning

Relying on its earlier decision in Aggrey v Republic, the court held that the section 352(2) power is strictly limited. The petition of appeal in the High Court raised material conflicts in prosecution evidence, alleged shifting of the burden of proof, ignoring of defences and erroneous sentences - matters of law. Had the judge properly considered these, he would not have summarily rejected the appeal. The judge therefore fell into error, and the proper course was to remit the appeal for admission to hearing.

p. 3

Legal principles established

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  • The power to summarily reject an appeal under section 352(2) of the Criminal Procedure Code is strictly limited to appeals brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The appeal is remitted to the High Court with an order that the same be admitted to hearing
On appeal from
High Court of Kenya at Kakamega
Kakamega HCCRA No. 147 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code following summary rejection of a first appeal under section 352(2)

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, "Charles Mulama & 1 other v Republic", Case Analysis (2014). Criminal Appeal No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/382/eng@2014-09-19

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