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Court of AppealAllowedCriminal Appeal No. 262 of 2012 (consolidated with Criminal Appeal No. 263 of 2012)· [2015] KECA 613 (KLR)

Fidelis Wandera Makokha Ouma & another v Republic [2015] KECA 613 (KLR)

Court of Appeal of Kenya

19 June 2015

D. K. Maraga DMD. K. Musinga SKS. Gatembu Kairu

554 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that judges cannot dismiss criminal appeals without a full hearing once the appellant raises a genuine point of law.

What this practically means

Executive summary

The appellants, Fidelis Wandera Makokha Ouma and Nicodemus Dede Magio, were convicted of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code and sentenced to death; the first appellant also faced an alternative charge of handling stolen property. Their first appeals to the High Court at Busia (Muchemi, J.) were summarily rejected, prompting two second appeals to the Court of Appeal at Kisumu, which were consolidated at the hearing. Counsel for the appellants, citing several authorities, argued that the first appeals raised substantial points of law that merited a plenary hearing, and the Principal Prosecution Counsel, Mr. Sirtuy, conceded the appeals on the basis that there was no sufficient ground for the summary rejection. The Court, comprising Maraga, Musinga and Gatembu, JJ.A, in a single judgment of the court, examined Section 352(2) of the Criminal Procedure Code, which permits summary rejection only where an appeal rests on the weight of evidence or excessive sentence and no material raises a reasonable doubt as to the conviction. The Court held that both appellants had raised identification/recognition, which is a point of law, and had also applied for copies of proceedings to raise more grounds that could have been further points of law. The Judge therefore erred in rejecting the appeals summarily. The Court of Appeal allowed the appeals, directed that the appellants' first appeals be heard afresh by a Judge other than Muchemi, J., and ordered that they be supplied with copies of the proceedings to enable them to amend their memoranda of appeal. No costs order was recorded.

Key legal issues

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

Holding

The learned Judge erred in summarily rejecting the appeals because the appellants raised a point of law (identification/recognition) and had sought proceedings to raise further grounds; the summary rejection jurisdiction was not properly available on those facts.

Reasoning

Section 352(2) permits summary rejection only where an appeal is based merely on the weight of evidence or excessive sentence and the Judge is satisfied there is no material raising a reasonable doubt about the conviction or the sentence. Here the memoranda raised identification/recognition, which is a point of law, and each appellant had applied for copies of proceedings to raise more grounds that could well have been further points of law. Those circumstances took the appeals outside the narrow statutory window for summary rejection and required a plenary hearing.

p. 2

Effect of the State's concession and counsel's submissions on summary rejection

Holding

The Principal Prosecution Counsel conceded the appeals, agreeing there was no sufficient ground for rejecting the appellants' appeal summarily, which the Court accepted alongside the appellants' submissions.

Reasoning

Counsel for the appellants, citing several authorities, argued that the first appeals raised substantial points of law meriting a plenary hearing, and the Principal Prosecution Counsel conceded that there was no sufficient ground for summarily rejecting the appeals. The Court expressly agreed with both counsel, reinforcing its independent conclusion that the summary rejection was erroneous and that a fresh hearing before a different Judge was the appropriate remedy.

p. 2

Legal principles established

A High Court Judge may only summarily reject an appeal under Section 352(2) of the Criminal Procedure Code where no point of law is raised; where a ground such as identification/recognition, a point of law, is raised, the appeal must proceed to a plenary hearing.
A request by an appellant for copies of proceedings to raise more grounds signals potential further points of law that weigh against summary rejection.

Court orders

1.The appeals are allowed
2.The appellants' appeals in the High Court are to be heard afresh by a Judge other than Muchemi, J.
3.The appellants are to be supplied with copies of the proceedings to enable them amend their memoranda of appeal to the High Court as they had requested

Authorities

Legislation

Penal CodeSection 295
Penal CodeSection 296(2)
Penal CodeSection 322(2)
Criminal Procedure CodeSection 352(2)

On appeal from: High Court of Kenya at Busia; H.C.CR.A. No. 7 of 2009 (and H.C.CR.A. No. 8 of 2009)
Jurisdiction invoked: Second appeal to the Court of Appeal under the Criminal Procedure Code following summary rejection of first appeals in the High Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fidelis Wandera Makokha Ouma & another v Republic [2015] KECA 613 (KLR)", Case Analysis (2015). Criminal Appeal No. 262 of 2012 (consolidated with Criminal Appeal No. 263 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/613/eng@2015-06-19

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