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Court of AppealPartially AllowedCriminal Appeal No. 221 of 2011

Gilbert Shikondi v Republic [2014] KECA 455 (KLR)

Court of Appeal of Kenya
27 June 2014
JOJ.W. Onyango OtienoFAF. AzangalalaSKS. ole Kantai
497 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled judges can only dismiss appeals without a full hearing in very limited situations, and reinstated a prisoner's appeal that was wrongly dismissed.

What this practically means

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Executive summary

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The appellant was convicted by the Chief Magistrate at Kakamega of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to fifteen years' imprisonment. His first appeal to the High Court at Kakamega (Lenaola, J.) was summarily dismissed on 29th September 2010. Before the Court of Appeal the appellant challenged the medical evidence, his identification and the prosecution's failure to call essential witnesses. Counsel for the respondent, apparently unaware that the first appeal had been summarily rejected, accepted on being alerted that the summary dismissal was wrong. The Court agreed, holding that the only cases in which an appeal may be summarily rejected are those laid down in section 352(2) of the Criminal Procedure Code - namely where the appeal is brought on the ground that the conviction is against the weight of the evidence or that the sentence is excessive, and the judge certifies that the appeal was lodged without sufficient ground for complaint. Because the appellant's grounds of appeal raised matters beyond those limited categories, a plain reading of the grounds showed section 352(2) could not apply, and the first appellate court therefore erred in summarily dismissing the appeal. The Court allowed the appeal, quashed the order of summary dismissal and reinstated the appellant's High Court appeal to hearing before a Judge other than Lenaola J., expressly declining to consider the other complaints raised. No costs order was recorded.

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 was entitled to summarily dismiss the appellant's first appeal under section 352(2) of the Criminal Procedure Code
  2. 2.Whether the grounds of appeal lodged before the High Court fell within the categories permitting summary rejection

Key legal issues

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01

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

Holding

The first appellate court erred in summarily dismissing the appeal because the appellant's grounds of appeal went beyond the limited grounds (weight of evidence or excessive sentence) for which section 352(2) permits summary rejection.

Reasoning

Section 352(2) permits summary rejection only where an appeal is brought on the ground that the conviction is against the weight of the evidence or that the sentence is excessive, and the judge certifies there is no sufficient ground for complaint. The appellant's grounds challenged the medical evidence, his identification and the failure to call essential witnesses - matters outside that scope. A plain reading of the grounds showed the provision could not apply, so the summary dismissal was wrong.

p. 2

Legal principles established

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  • An appeal may only be summarily rejected under section 352(2) of the Criminal Procedure Code where the grounds of appeal are confined to conviction against the weight of evidence or excessive sentence, and the grounds as lodged must fall within those categories.

Court orders

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  1. 1.The appeal is allowed and the order for summary dismissal is quashed
  2. 2.The appellant's appeal lodged in the High Court is reinstated to hearing according to law before a Judge other than Lenaola J.

The bench

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

JO
majority

Wrote the judgment

FA
majority

Wrote the judgment

SK
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kakamega
HCCR.A. No. 72 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code following conviction under the Sexual Offences Act

Relief refused

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Determination of the merits of the medical evidence, identification and failure to call essential witnesses

The Court found it unnecessary to consider those complaints once the summary dismissal was quashed

p. 2

Costs

No costs order recorded 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.

The only cases in which an appeal may be summarily rejected are those laid down in section 352 (2) of the Criminal Procedure Code
p. 1Limits of summary rejection under section 352(2) Criminal Procedure Code
Accordingly we allow this appeal and quash the order for summary dismissal.
p. 2Final orders
The appellant's appeal lodged in the High Court is reinstated to hearing according to law before a Judge other than Lenaola J.
p. 2Reinstatement and reassignment of the first appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Gilbert Shikondi v Republic [2014] KECA 455 (KLR)", Case Analysis (2014). Criminal Appeal No. 221 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/455/eng@2014-06-27

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