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Court of AppealAllowedCriminal Appeal No. 98 of 1999

Joseph Shida Karisa & another v Republic [2000] KECA 95 (KLR)

Court of Appeal of Kenya
26 January 2000
909 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a High Court cannot dismiss a criminal appeal without a hearing when the conviction came from a guilty plea.

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 by Joseph Shida Karisa and Charo Karisa Ngala, who had been convicted of robbery with violence contrary to section 296(2) of the Penal Code on a purported plea of guilty and sentenced to death. Their first appeal to the High Court was summarily rejected by Ang'awa, J. under section 352(2) of the Criminal Procedure Code without a hearing. Before the Court of Appeal, counsel for the appellants submitted that the summary rejection was improper because the appellants were not heard, and that on a capital charge they should have been cautioned as to the sentence they would face on pleading guilty; Senior State Counsel conceded both points. The court held that section 352(2) applies only to appeals against conviction on the weight of evidence adduced, or against excessive sentence, and does not cover appeals against convictions entered on a plea of guilty, where no evidence is adduced. Neither exception in the proviso to section 352(1) applied, and the proviso otherwise required that the appellant be heard before summary rejection. Consequently, the High Court lacked jurisdiction to reject the appeals summarily. The court allowed the appeals, quashed the summary rejection, and directed that the rejected appeals be placed before a Judge other than Ang'awa, J. for admission to hearing on a priority basis. 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 High Court had jurisdiction under section 352(2) of the Criminal Procedure Code to summarily reject the appellants' first appeal without hearing them
  2. 2.Whether appeals against convictions entered on a plea of guilty fall within section 352(2) of the Criminal Procedure Code
  3. 3.Whether the appellants should have been cautioned as to the sentence they would face on pleading guilty to a capital charge

Key legal issues

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01

Scope of summary rejection of appeals under section 352(2) of the Criminal Procedure Code

Holding

Section 352(2) applies only where the conviction was based on evidence adduced (oral or otherwise) or where the appeal is against severity of sentence; it does not cover appeals against conviction founded on a plea of guilty.

Reasoning

The court read section 352(2) literally: it envisages a decision appealed against handed down after oral testimony, or an appeal against severity of sentence. Since the appellants were convicted on a purported plea of guilty, no evidence was adduced in support of the convictions, so their appeals fell outside the sub-section. Neither exception in the proviso to section 352(1) applied, and the proviso required an opportunity to be heard before summary rejection.

p. 2
02

Jurisdiction of the High Court to reject the appeal summarily

Holding

Because the appeals did not fall within section 352(2), the learned Judge lacked jurisdiction to reject them summarily.

Reasoning

Having concluded that the statutory preconditions for summary rejection were absent, the court held the summary rejection a nullity. The State conceded that the appellants were not heard before rejection and that, on a capital charge, they should have been cautioned on the sentence to expect upon a plea of guilty. The court allowed the appeals, quashed the summary rejection and remitted the appeals for admission before a different Judge.

p. 2

Legal principles established

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  • Section 352(2) of the Criminal Procedure Code permits summary rejection only of appeals against conviction on the weight of evidence adduced, or against severity of sentence; it does not apply to appeals against conviction on a plea of guilty, and a High Court lacks jurisdiction to summarily reject such an appeal without hearing the appellant.

Court orders

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  1. 1.The appellants' respective appeals are allowed
  2. 2.The summary rejection of the appellants' appeals in the superior court is quashed
  3. 3.The rejected appeals are to be placed before a Judge other than Ang'awa, J. for admission to hearing on a priority basis

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.CR.C. No. 104 of 1997
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against summary rejection of first appeal under section 352(2))

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.

The wording of section 352(2), above, envisages a situation where the decision appealed against was handed down after oral testimony from witnesses, or in cases where the appeal is against severity of sentence.
p. 2Scope of summary rejection under section 352(2) Criminal Procedure Code
the learned Judge of the superior court lacked the jurisdiction to summarily reject the appeals as she did
p. 2Lack of jurisdiction to reject appeals summarily
Accordingly, we allow the appellants' respective appeals, quash the summary rejection of their appeals in the superior court, and direct that the rejected appeals be placed before a Judge other than Ang'awa, J. for admission to hearing on a priority basis. We so order.
p. 2Final orders and disposition

Issues in the judgment

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minor

The judgment text contains a typographical corruption where the record of the first appeal merges with the narrative of facts, garbling the name of the Criminal Procedure Code.

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, "Joseph Shida Karisa & another v Republic [2000] KECA 95 (KLR)", Case Analysis (2000). Criminal Appeal No. 98 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/95/eng@2000-01-26

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