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Court of AppealPartially AllowedCriminal Appeal No. 146 of 2000

George Otieno Awino vs Republic [2000] KECA 82 (KLR)

Court of Appeal of Kenya
24 November 2000
BCB. ChungaPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
635 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judges cannot dismiss criminal appeals without a hearing when legal grounds are raised, and reduced illegal excessive sentences.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate, Maseno, on two counts of common assault contrary to section 250 of the Penal Code and one count of malicious damage to property contrary to section 339(1), and sentenced to five years' imprisonment on each count, the sentences to run concurrently. His first appeal to the High Court at Kisumu (Wambilyangah, J) was summarily rejected under section 352(2) of the Criminal Procedure Code without the appellant being heard. On second appeal, the Court of Appeal (Chunga, CJ, Tunoi and Lakha, JJA) held that summary rejection is permissible only where the memorandum of appeal contains no ground other than that the conviction is against the weight of evidence or that the sentence is excessive. Since the petition of appeal raised several questions of law, the superior court had no jurisdiction to reject the appeal summarily, and the course adopted occasioned injustice. Rather than remit the matter, the court invoked section 3(2) of the Appellate Jurisdiction Act and dealt with the appeal substantively. It held the five-year sentence on Count One illegal, the statutory maximum for common assault being one year, and substituted one year's imprisonment; it likewise found the Count Two sentence excessive and substituted one year; it quashed the Count Three conviction for want of evidence and set aside that sentence, the substituted sentences to run concurrently. The appeal was allowed to that limited extent. 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 superior court had jurisdiction to reject the first appeal summarily under section 352(2) of the Criminal Procedure Code when the petition of appeal raised grounds of law
  2. 2.Whether the sentences imposed on the three counts were lawful and appropriate

Key legal issues

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01

Jurisdiction to reject a first appeal summarily under section 352(2) of the Criminal Procedure Code

Holding

Summary rejection is permissible only where the memorandum of appeal raises no ground other than weight of evidence or excessive sentence; because the petition here raised several questions of law, the superior court had no jurisdiction to reject it summarily.

Reasoning

Section 352 empowers summary rejection if and only if the appeal is brought solely on the ground that the conviction is against the weight of evidence or the sentence is excessive. The petition of appeal in the superior court raised several questions of law, so the statutory precondition was absent. The judge's course was wrong and occasioned injustice, as the appellant was denied the opportunity of being heard in support of his appeal.

p. 1
02

Legality and appropriateness of the sentences imposed

Holding

The 5-year sentence on Count One was illegal because the prescribed maximum for common assault under section 250 of the Penal Code is one year; the 5-year sentence on Count Two was excessive and reduced to one year; the conviction on Count Three was quashed for lack of evidence.

Reasoning

Section 250 of the Penal Code prescribes a maximum of one year's imprisonment for common assault, rendering the 5-year sentence on Count One illegal. On Count Two, no grave circumstances justified the maximum penalty, so five years was excessive. On Count Three there was no complainant and no other evidence to sustain the conviction, which was quashed with its sentence set aside.

p. 2

Legal principles established

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  • A first appeal may be rejected summarily under section 352(2) of the Criminal Procedure Code without hearing the appellant only if the memorandum of appeal contains no ground other than that the conviction is against the weight of evidence or that the sentence is excessive; if any ground of law is raised, the superior court has no jurisdiction to reject the appeal summarily.
  • The Court of Appeal may invoke section 3(2) of the Appellate Jurisdiction Act to deal with an appeal substantively rather than remit it where justice and judicial time so require.

Court orders

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  1. 1.Sentence of 5 years' imprisonment on Count One (common assault) set aside and substituted with one year's imprisonment
  2. 2.Sentence of 5 years' imprisonment on Count Two set aside as excessive and substituted with one year's imprisonment
  3. 3.Conviction on Count Three (malicious damage to property) quashed and the sentence imposed on that count set aside
  4. 4.Substituted sentences on Counts One and Two to be served concurrently
  5. 5.Appeal allowed to the limited extent of the substituted sentences and quashed third conviction

The bench

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

BC
majority
Philip Kiptoo Tunoi
majority
AL
majority
On appeal from
High Court of Kenya at Kisumu
H.C. Cr. Appeal No. 69 of 1999
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act (second appeal under the Criminal Procedure Code)

Relief refused

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Remittal of the matter to the superior court for disposal

The appellant may already have served the allegedly illegal sentences and the court wished to save judicial time, so it dealt with the appeal substantively itself

p. 2

Costs

No costs order 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.

a first appeal may be rejected summarily under section 352(2), without the appellant or his advocate being given the opportunity of being heard, only if the memorandum of appeal contains no ground of appeal other than that the conviction is against the weight of evidence or that the sentence is excessive
p. 1Limits of summary rejection under section 352(2) Criminal Procedure Code
Several questions of law were raised in the petition of appeal to the superior court which, consequently, had no jurisdiction to reject the appeal summarily.
p. 1Lack of jurisdiction where grounds of law are raised
The sentences which we have substituted in Counts One and Two shall be served concurrently. To this limited extent the appeal is allowed.
p. 2Final orders - partial allowance of the appeal

Issues in the judgment

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minor

The copy of the judgment contains garbled/duplicated text in one passage, apparently a typographical corruption

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "George Otieno Awino vs Republic [2000] KECA 82 (KLR)", Case Analysis (2000). Criminal Appeal No. 146 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/82/eng@2000-11-24

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