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Court of AppealDismissedCriminal Appeal No. 119 of 1990

IHA SHUME & 4 OTHERS vs REPUBLIC [1991] KECA 19 (KLR)

Court of Appeal
26 July 1991
JMJ.R.O. MasimeACA.M. CockarMMM.G. Muli
1,009 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that weak, poorly drafted appeal grounds can get a criminal appeal thrown out without a full hearing.

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 Mombasa against the summary rejection, by Shields, J., of the appellants' first appeals under section 352(2) of the Criminal Procedure Code. The five appellants, all members of one family, had been convicted of manslaughter contrary to section 205 of the Penal Code and sentenced to six years' imprisonment for the fatal mob assault on Muzungu Mtenzi at a funeral on 27th November 1986, the assault being fuelled by a belief that the deceased had caused the death of a relative, Punya Rongoma, by witchcraft. The prosecution case rested on two eyewitnesses whose evidence was found unshaken, and was corroborated by police and medical evidence of fatal head injuries. The learned trial magistrate had carefully analysed the evidence and found the appellants identified in broad daylight by credible witnesses, and guilt established beyond reasonable doubt. The Court of Appeal examined each appellant's grounds of appeal to the superior court, most of which centred on the belief in witchcraft, and agreed with the first appellate judge that those grounds disclosed no reasonable ground for complaint. The Court accordingly affirmed the summary rejection of the first appeals and ordered the appeals dismissed. The judgment, dated 26th July 1991, was delivered at Mombasa by Masime, Cockar and Muli, JJ.A., as a single judgment of the Court. 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 grounds of appeal advanced before the superior court disclosed any reasonable ground of complaint so that the summary rejection of the first appeal under section 352(2) of the Criminal Procedure Code was justified

Key legal issues

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01

Whether the High Court rightly exercised its power under section 352(2) of the Criminal Procedure Code to reject the first appeals summarily

Holding

The Court of Appeal held that the summary rejection was correct because the home-made grounds of appeal raised no reasonable ground for complaint; it reviewed each appellant's grounds and agreed with the first appellate judge.

Reasoning

The Court considered each appellant's grounds of appeal to the superior court and concluded that they disclosed no reasonable ground for complaint. It noted that the learned trial magistrate had carefully analysed and evaluated the evidence, that the appellants were identified in broad daylight by credible and competent witnesses, and that the conviction was supported by proof beyond reasonable doubt. A belief that the deceased had killed a relative by witchcraft did not furnish a sustainable ground of appeal.

p. 2

Legal principles established

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  • Where the grounds of appeal to the superior court disclose no reasonable ground of complaint, the High Court is entitled to summarily reject the first appeal under section 352(2) of the Criminal Procedure Code, and the Court of Appeal will not interfere with such rejection.

Court orders

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  1. 1.The appellants' appeals to the superior court, summarily rejected under section 352(2) of the Criminal Procedure Code, are dismissed
  2. 2.The High Court's rejection of the first appeals is upheld

The bench

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

JM
majority

Wrote the judgment

AC
majority

Wrote the judgment

MM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 95, 96, 97, 103 & 104 of 1990
Jurisdiction invoked
Section 352(2) of the Criminal Procedure Code (first appellate rejection under that provision; second appeal to the Court of Appeal)

Relief refused

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The appellants' appeal against the summary rejection of their first appeal

The grounds of appeal did not raise any reasonable ground for complaint and the first appellate judge was right to reject the appeals

p. 2

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.

We have carefully considered each appellants' grounds of appeal to the superior court; like the first appellant judge we are of the view that those grounds of appeal do not raise any reasonable ground for complaint.
p. 2Merits of the appeal to the superior court
Accordingly we are satisfied that the learned first appellate judge was right in rejecting the first appeals and we order them to be dismissed.
p. 2Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment lists the fifth appellant twice in different capacities - as a brother of the deceased and as a nephew - creating an internal inconsistency in the description of the family relationships.

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, "IHA SHUME & 4 OTHERS vs REPUBLIC [1991] KECA 19 (KLR)", Case Analysis (1991). Criminal Appeal No. 119 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/19/eng@1991-07-26

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