N.K.W V Republic [2003] KECA 177 (KLR)
The bottom line
#Kenya's Court of Appeal overturned a judge's decision to dismiss an appeal without a full hearing, ruling such shortcuts are reserved for the clearest cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge of the superior court was right in summarily rejecting the appellant's first appeal under section 352(2) of the Criminal Procedure Code
- 2.Whether the question of corroboration of the evidence of the complainant, a child of tender years, was a matter that had to be gone into on the first appeal
- 3.Whether the appellant's plea of autrefois acquit raised a matter of law requiring consideration on the first appeal
- 4.Whether the judge ought to have heard the appellant on the 14-year sentence before summarily rejecting the appeal
Key legal issues
#Whether the High Court judge rightly exercised the power of summary rejection under section 352(2) of the Criminal Procedure Code
No. The jurisdiction to summarily reject an appeal exists only in the clearest of cases. Here the appeal raised the corroboration of a child's unsworn evidence, a plea of autrefois acquit, and a potentially reducible sentence; none of these could be resolved without a hearing, so the summary rejection was quashed.
Section 352(2) permits a judge to reject an appeal summarily, without setting it down for hearing, only where the record discloses no material which could raise a reasonable doubt whether the conviction was right or lead to the opinion that the sentence ought to be reduced. The appellant's appeal raised corroboration of a child of tender years' evidence, a plea of autrefois acquit, and the severity of a 14-year sentence. Since these required to be gone into at a hearing, the summary rejection jurisdiction was wrongly invoked and the order could not stand.
Corroboration of the evidence of a child of tender years
The evidence of a child of tender years must be corroborated by other material evidence implicating the accused; failing such corroboration, the accused shall not be liable to be convicted on that evidence. Whether there was cogent corroboration was a matter of mixed law and fact requiring a full hearing.
The complainant was five years old and too young to appreciate the nature of a statement on oath, so her evidence was taken in the form of a statement only. Under section 124 of the Evidence Act, Cap 80, such evidence must be corroborated by other material evidence implicating the accused. The appellant alleged the child's evidence was manipulated, in that she told the court what her mother told her to tell the court. Whether cogent corroboration existed was therefore a mixed question of law and fact that had to be gone into on the first appeal.
The plea of autrefois acquit
The appellant's complaint that he had earlier been 'released after winning' was presumed to be a plea of autrefois acquit. Although it was unclear how the point was brought into the appeal to the High Court, it was a matter of law which had to be gone into on the first appeal, even if it might prove to be a red herring.
The Court presumed that the appellant's assertion that he had earlier been released after winning was a plea of autrefois acquit. It could not see clearly how the issue had been brought into the petition of appeal in the superior court, but held it was a point of law. A matter of law on a first appeal could not be disposed of by summary rejection; whatever its ultimate merits, the plea needed to be examined by a judge at a hearing.
The 14-year sentence
The judge ought to have heard the appellant on the 14-year sentence before summarily rejecting the appeal. The Court expressed no view on whether the sentence would in fact be reduced, leaving that to the hearing of the first appeal.
Excessive sentence is one of the statutory grounds contemplated by section 352(2) of the Criminal Procedure Code. The Court considered there could well be an argument that the sentence could be reduced, but cautioned that the argument would not necessarily succeed. Nevertheless, natural justice required that the appellant be heard on sentence before his appeal was rejected without being set down for hearing, and the failure to do so independently vitiated the summary rejection.
Legal principles established
#- The jurisdiction to summarily reject an appeal under section 352(2) of the Criminal Procedure Code must be invoked only in the clearest of cases.
- Evidence of a child of tender years must be corroborated by other material evidence implicating the accused, and without such corroboration the accused shall not be liable to be convicted on that evidence alone (section 124, Evidence Act, Cap 80).
- Where an appeal raises an issue of mixed law and fact, such as the sufficiency of corroboration, that issue cannot be disposed of by summary rejection and must be gone into at a hearing.
- Before summarily rejecting an appeal in which the excessiveness of sentence is in issue, the judge must give the appellant a hearing on sentence.
Court orders
#- 1.The appeal is allowed
- 2.The summary rejection of the appellant's appeal by the High Court is quashed
- 3.A direction that the appellant's appeal to the High Court be returned for a judge to admit it to hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nyeri
- H C C Cr A No 86 of 2000
- Jurisdiction invoked
- Criminal appeal to the Court of Appeal against an order of the High Court summarily rejecting the appellant's first appeal under section 352(2) of the Criminal Procedure Code; the judgment does not itself cite the specific provision conferring the second appeal
Relief refused
#Determination of the second conviction under section 44(1) of the Public Health Act, Cap 242
The Court declined to go into that conviction at this hearing, leaving it for the rehearing of the first appeal
Reduction of the 14-year sentence at this stage
The Court held only that the judge below ought to have heard the appellant on the sentence; whether it would in fact be reduced was left to the rehearing of the first appeal
Costs
No costs order was made; the judgment is silent on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the appeal is allowed, the summary rejection of the appeal is quashed and a direction given that the appellant’s appeal to the High Court should be returned for a judge to admit it to hearing and we so order.
We have said it before and we say it again that the jurisdiction to summarily reject an appeal ought to be invoked in the clearest of cases where the conviction is against the weight of evidence, or that the sentence is excessive.
It is a requirement in law that the evidence of a child of tender years ought to be corroborated by other material evidence in support thereof implicating the accused person.
It is quite clear in the instant case that the issue of corroboration, that is whether or not there was cogent corroboration of the complainant’s evidence is a matter of mixed law and fact.
the appeal may, without setting down for hearing, be summarily rejected by an order of the judge certifying that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint.
The point could well be a red herring but it needed to be gone into on the first appeal.
Issues in the judgment
#The appeal header identifies the judge of the High Court below as Juma J ('Appeal from an order of the High Court at Nyeri (Juma, J) dated 23rd May, 2000'), but the body of the judgment refers to the judge who summarily rejected the first appeal as Mitey J. The identity of the deciding judge below is therefore internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "N.K.W V Republic [2003] KECA 177 (KLR)", Case Analysis (2003). Criminal Appeal No 61 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/177/eng@2003-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.