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Court of AppealDismissedCriminal Appeals (consolidated) from Mombasa· [1985] KECA 148 (KLR)

Kariuki v Republic [1985] KECA 148 (KLR)

Court of Appeal of Kenya
25 July 1985
KNKnellerHAHancoxNYNyarangi
1,150 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Two appellants, jointly charged with robbery of Shs 355,359.15 in hotel takings from a mini bus at Mombasa, were convicted by the Acting Resident Magistrate and each sentenced to four years' imprisonment plus four strokes of corporal punishment on March 27, 1984. Neither appealed within the 14 days allowed by section 349 of the Criminal Procedure Code; they applied out of time in July 1984, blaming their advocate's silence. Bhandari J, on August 23, 1984, found the delay inordinate and refused to admit the appeals out of time. On further appeal, the Court of Appeal (Kneller, Hancox and Nyarangi JJA, in a single judgment) noted that a letter from the advocate dated June 16, 1984, confirming instructions to appeal, had not been before the High Court judge or State Counsel, who conceded the discretion might have been exercised differently. Counsel also accepted that an exercise of discretion on mistaken facts could be a matter of law appealable under section 361(1). However, section 361(8), added in 1978, expressly excludes refusals to admit appeals out of time under section 349 from the section and declares them final. Reaffirming that the Court has no inherent jurisdiction and may hear only appeals conferred by statute, the Court held it had no jurisdiction and dismissed both appeals as incompetent, regretting that the appellants lost a reasonable chance of having their appeals heard. The substantive convictions were not before the Court.

Key legal issues

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01

Jurisdiction of the Court of Appeal over refusals to admit appeals out of time

Holding

The Court has no jurisdiction to entertain appeals from such refusals; the appeals were dismissed as incompetent.

Reasoning

Section 361(1) of the Criminal Procedure Code, which permits appeals on matters of law, is expressly made subject to subsection (8), inserted by the Statute Law Miscellaneous Amendments Act, 1978. That subsection excludes from section 361 any refusal by the High Court to admit an appeal out of time under section 349 and declares such refusal final. Since the right of appeal must be founded in statute and the Court has no inherent jurisdiction, the present appeals, being from such a refusal, could not be entertained.

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02

Exercise of discretion on incomplete or mistaken facts as a matter of law

Holding

Counsel for the Republic conceded, and the Court acknowledged, that an exercise of discretion on incomplete or mistaken facts could amount to a matter of law appealable under section 361(1) - but that provision does not apply here.

Reasoning

The Court noted that a letter from the appellants' advocate dated June 16, 1984, showing that appeals had been instructed and a memorandum filed, existed but was not before Bhandari J or State Counsel. The Republic conceded the judge would likely have exercised his discretion differently had he known. Nevertheless, the concession on appealability could not overcome the express statutory exclusion in section 361(8).

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Legal principles established

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  • The Court of Appeal has no inherent jurisdiction and may hear only appeals whose right is conferred by statute
  • A refusal by the High Court to admit an appeal out of time under section 349 is final and is excluded from the scope of section 361

Court orders

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  1. 1.Both appeals dismissed as incompetent
On appeal from
High Court at Mombasa
null
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (as it applies, and does not apply, to appeals to the Court of Appeal); right of appeal conferred by statute only

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, "Kariuki v Republic [1985] KECA 148 (KLR)", Case Analysis (1985). Criminal Appeals (consolidated) from Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/148/eng@1985-07-25

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