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PHILBERT KALAMA NGUMA v. REPUBLIC

(2001) JELR 93866 (CA)

Court of Appeal  •  Criminal Appeal 56 of 2000  •  17 Jan 2001  •  Kenya

Coram
Akilano Molade Akiwumi, Moijo Matayia Ole Keiwua, Bernard Chunga

Judgement

JUDGMENT OF THE COURT

The appellant was convicted by the subordinate court of the charge of attempted rape and sentenced to seven years imprisonment. He appealed against this conviction and sentence to the High Court. Three of his four grounds of appeal were to the effect that his conviction was against the weight of evidence. The fourth ground of appeal, however, which was:

"... the trial magistrate erred in refusing permission to summon my witness, and to take evidence tendered by the chief.",

clearly raised a question of law.

Waki, J, however, then summarily rejected the Appellant's appeal under s 352 of the Criminal Procedure Code as follows:

"I certify that I have perused the record and am satisfied that the appeal has been lodged without sufficient ground for complaint.".

But such an order can only be made under s 352(2) of the Criminal Procedure Code which provides that:

"Where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the se…

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