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Court of AppealDismissedCriminal Appeal [Nakuru]

EKK v Republic (Criminal Appeal 386 of 2019) [2023] KECA 599 (KLR)

Court of Appeal of Kenya
26 May 2023
FSF SichaleFOF OchiengLAL Achode
1,716 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming that guilty pleas make convictions nearly impossible to overturn on appeal.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Nakuru arising from a charge of defilement contrary to section 8(2) as read with section 8(3) of the Sexual Offences Act. The appellant, accused of defiling a six-year-old relative, pleaded guilty before the trial court and was sentenced to life imprisonment. His first appeal to the High Court at Eldoret (M Ang'awa, J) was summarily rejected under section 352(2) of the Criminal Procedure Code. Before the Court of Appeal, the appellant, appearing in person, raised six grounds, including that the summary judgment was rendered in his absence, that the mandatory life sentence was inhumane and degrading, that the plea was not taken in a language he understood as required by section 198(1) of the CPC, that he was not warned of the consequences of pleading guilty, and that he was tortured and coerced into pleading guilty. The respondent, represented by Mr Onkoba, maintained that the plea was unequivocal, that section 348 of the CPC barred the appeal against conviction, and that the summary rejection was proper. The Court framed a single issue: whether the High Court Judge was right in summarily rejecting the appeal. It held that summary rejection is an exceptional power to be exercised sparingly and in the clearest of cases, but that this was such a case: the appellant had acknowledged pleading guilty, the facts read out were sufficient to prove the offence, and no circumstances raised a reasonable doubt about the correctness of the conviction. The court also observed, obiter, that the High Court lacks jurisdiction to grant leave to appeal to the Court of Appeal, noting the Notice of Appeal was filed more than eight years after the summary rejection. The appeal was dismissed in its entirety. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the learned Judge of the High Court was right in summarily rejecting the appeal lodged by the appellant

Key legal issues

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01

Whether summary rejection of the first appeal under section 352(2) CPC was proper

Holding

Yes. The grounds before the High Court were appropriate for summary rejection because the appellant had pleaded guilty and the facts as read could not be challenged; no circumstances raised a reasonable doubt about the correctness of the conviction.

Reasoning

The court held that summary rejection is an exceptional power to be exercised sparingly and in the clearest of cases. Here the appellant acknowledged pleading guilty; the appeal before the High Court was brought solely on the weight of evidence and the sentence, matters squarely covered by section 352(2). The learned Judge was satisfied the record disclosed no sufficient ground for complaint.

p. 3
02

The High Court's jurisdiction to grant leave to appeal to the Court of Appeal

Holding

The High Court is not clothed with jurisdictional mandate to grant such leave; the court noted the Notice of Appeal was filed more than 8 years after summary rejection but declined to inquire into the basis of the grant of leave.

Reasoning

Although not the duty of the Court to inquire into why the High Court purportedly granted leave, the court observed it would have been interesting to see the basis, because the High Court lacks jurisdiction to grant leave to appeal to the Court of Appeal. This observation was obiter; the appeal was dismissed on its merits.

p. 4

Legal principles established

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  • Summary rejection of appeals under section 352 of the Criminal Procedure Code is an exceptional power to be invoked sparingly, in the clearest of cases, and cannot be exercised with carefree zeal.
  • The High Court has no jurisdictional mandate to grant leave to appeal to the Court of Appeal.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Orders accordingly (DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF MAY, 2023)

The bench

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

FS
majority
FO
majority
LA
majority
On appeal from
High Court of Kenya at Eldoret
Jurisdiction invoked
Second appeal to the Court of Appeal following summary rejection of the first appeal under section 352(2) of the Criminal Procedure Code

Relief refused

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Setting the appellant at liberty or ordering a retrial

The appeal lacked merit; the appellant pleaded guilty and the grounds raised were afterthoughts inappropriate for interference

p. 4

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.

It is trite law that summary rejection of appeals under Section 352 of the Criminal Procedure Code is an exceptional power reposed in a Judge of the High Court and should be invoked sparingly and should be exercised in the clearest of cases
p. 3Exceptional nature of summary rejection under section 352 CPC
In our considered view, there were no circumstances which could raise any reasonable doubt about the correctness of the conviction.
p. 4Sufficiency of facts following a plea of guilty
We say so because the High Court is not clothed with jurisdictional mandate to grant such leave to appeal.
p. 4High Court's lack of jurisdiction to grant leave to appeal to the Court of Appeal
In conclusion, the appeal lacks merit and is hereby dismissed. Orders accordingly.
p. 4Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment does not state the appeal number under which it was filed; the coram lists the judges only by initials and surname at the delivery clause, and no author of the judgment is named.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "EKK v Republic (Criminal Appeal 386 of 2019) [2023] KECA 599 (KLR)", Case Analysis (2023). Criminal Appeal [Nakuru]. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/599/eng@2023-05-26

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