WEEK 11

APPEALS

The right of a person convicted to appeal to a higher court is guaranteed by the Constitution
(art. 50(1)(q), CoK). And, because an appeal does not constitute a new trial, the right not to
be tried for an offence of which one has been acquitted does not bar an appeal by the DPP
against an acquittal (art. 50(o), CoK; R v Danson Mgunya Court of Appeal at Mombasa Criminal
Appeal No. 21 of 2016).

There is no provision for a private prosecutor to appeal an acquittal by a subordinate court to

the High Court (s. 348A, CPC; Njoroge v Karanja

& Another High Court of Kenya Criminal Appeal No. 399 of 1981;

Kimani v Kahara High Court at Nairobi High Court Revision Case of

1983).

Interlocutory Appeals

The limit of the right of appeal to those who have been convicted excludes any fundamental
right to file an interlocutory appeal (art. 50(1) (q), CoK). The CPC also refers only to appeals
following conviction or acquittal (ss. 347(1) & 379(1), CPC).

However, an interlocutory appeal may be allowed in exceptional circumstances such as

when a ruling made by a trial court violates or is likely to violate the constitutional rights of an
accused person (Thomas Patrick Gilbert Cholmondeley v R Court of Appeal at Nairobi Criminal
Appeal No. 116 of 2007, citing s. 84(7) of the former Constitution, equivalent of Article 22(1) of
the CoK). However, the court in Sheila Kinya Maingi v R (High Court of Kenya at Nairobi
Criminal Appeal No. 388 of 2008) held that, in criminal cases, it is good practice for an accused
who is aggrieved by a decision made during trial to await the conclusion of the trial and, if
convicted, challenge that decision in a substantive appeal to the High Court. In deciding
whether to entertain an interlocutory appeal, courts must bear in mind that such appeals
 may be used to delay the trial rather than to pursue
substantive legal concerns (John Njenga Kamau v R High
Court at Nairobi Criminal Appeal No. 63 of 2014).
Nevertheless the court must strike a balance between the
constitutional rights of an accused and the possibility that
the interlocutory appeal was made to delay or frustrate the
case (Sheila Kinya Maingi v R High Court at Nairobi
Criminal Appeal No. 388 of

2008)
.

Bail Pending
Appeal

When an appeal is pending in the High Court, a magistrate

or judge may grant bail or stay execution of a sentence
pending appeal (s. 356 & 357, CPC; R v Antony Karanja
Njeru High Court at Embu Criminal Case No.

9 of
2016).

To be entitled to bail pending appeal, the applicant must

satisfy the court that the appeal has overwhelming chances
of success (para. 4.30, Bail and Bond Policy Guidelines;
Samuel Macharia Njagi v R High Court at Nyeri Criminal
Appeal No. 50 of 2013; Francis Ngobu v R High Court at
Murang’a Criminal Appeal No. 264 of 2013). This phrase,
which has been used in recent cases, may suggest a heavier
burden of persuasion than earlier decisions that stated that
the applicant must persuade the court that the grounds for
appeal are so meritorious that the probabilities will favour
acquittal (Somo v R (1972) EA 476). On the other hand, a
recent case that cites many previous authorities uses the
expression

‘high chances of success’ (Peter Hinga Ngatho v R [2015]

eKLR High

Court Nyeri, Criminal Appeal No. 2 of

2015).

For appeals to the Court of Appeal, either the High Court

or the Court of Appeal may grant bail to an appellant
pending appeal (s. 357, CPC; r. 5(2)(a), Court of Appeal
Rules 2010).
In cases involving certain serious offences, the DPP may
appeal to the Court of Appeal, as of right, against a
decision of the High Court (in its original jurisdiction) to
grant bail to an accused person (s. 379A, CPC; R v Nuseiba
Mohammed Haji Osman alias Umm Fidaa, alias Ummu
Fidaa, alias Ummulxarb Court of Appeal at Nairobi Criminal
Application No. 4 of 2016). The DPP’s right to appeal under
section

379A, however, only applies in cases in which an

accused has been charged under the following Acts:

i) Penal Code, section 203 or 296(2);

ii) Prevention of Terrorism Act;

iii) Narcotic Drugs and Psychotropic Substances

(Control) Act;

iv) Prevention of Organized Crimes Act;

v) Proceeds of Crime and Anti-Money Laundering Act;

and

vi) Counter-Trafficking in Persons Act.

II. Appellate
Jurisdiction
Appeal from a Subordinate Court to the
High Court

The High Court, as the first appellate court, may hear

appeals on both matters of law and matters of fact (s.
347(2), CPC). For matters of fact, it is the duty of the High
Court as the first appellate court to re-evaluate the evidence
adduced at trial (Okeno v R (1972) EA 32; Felix Kinyanya
Marako v R High Court at Migori Criminal Appeal No. 102 of
2014).

An appeal to the High Court should be filed within 14 days

from the date of delivery of judgment. However, if an appeal
is filed after the 14- day period, the High Court may admit
it if good cause is shown for the delay. The High Court has
allowed late filings where, for example, an appellant or his
or her advocate was unable to obtain a copy of the order or
judgment before the 14-day deadline (s. 349, CPC; R v
Ramchandra
 Shankarlal Bhatt v R High Court at Kericho Criminal
No. 19 of

2015; Mary Wanja Njoroge v R High Court at Nakuru Misc.

Criminal

Application No. 65 of 2014).

An accused convicted on a plea of guilty can only appeal

against the sentence (s. 348, CPC) and has no right to appeal
against the conviction. However, this is not an absolute bar;
there may be special circumstances that, in the interests of
justice, would warrant an appeal against the conviction,
even by an accused who pleaded guilty (Nyawa Mwajowa
v R Court of Appeal at Mombasa Criminal Appeal No. 46 of
2015). For instance, the plea of guilty may not have been
truly voluntary because it was made under duress (John
Gupta Nganga Thiongo v R High Court at Nairobi Criminal
Appeal No. 669 of 1986), or without knowledge of the
severity of a mandatory sentence (Julius Mwanzia Muthiani
v R Court of Appeal at Mombasa Criminal Appeal No. 92 of
1999). The accused may have admitted facts that do not
disclose an offence, or pleaded guilty to a non-existent
offence (Nyawa Mwajowa v R Court of Appeal at Mombasa
Criminal Appeal No. 46 of 2015).

Petition of Appeal

Appeals to the High Court are lodged in the form of a

petition. The petition must be accompanied by the
judgement or the order appealed against (s. 350(1), CPC).
The petition must (s. 350(2), CPC):

i) Be signed by the appellant or the appellant’s

advocate if the appellant is represented;

ii) Set out particulars of the matters of law or fact

constituting the grounds of appeal;

iii) Indicate the address to which documents may be

served on the appellant or the appellant’s advocate if
the appellant is represented.
 To amend the petition of appeal, the appellant or
appellant’s advocate must seek leave of the court (s.
350(2)(iv), CPC; Gerald Wathiu Kiragu v R High Court at Nyeri
Criminal Appeal No. 110 of 2011). An appellant or appellant’s
advocate may, however, amend the petition without leave of
the court under the following circumstances (s. 350(2)(i),
CPC):

i) Within seven days of receiving the copy of the trial

court record, and

ii) The appellant or appellant’s advocate had applied for

the record of the trial court within five days of receiving
the judgement or order, and

iii) The appeal was lodged within the 14-day period

but before receiving a copy of the trial record.

An amendment of the petition without leave of the court under

section

350(2)(i) of the CPC is made through a notice in writing

to both the

Registrar of the High Court and the Director of Public

Prosecutions.

Summary Rejection of Appeals

Generally, an appeal may be rejected summarily if a High

Court judge, after reviewing the petition, is satisfied that
there are no sufficient grounds for interfering (s. 352(1),
CPC).
However, where a petition challenges the weight of the
evidence or claims that the sentence is excessive, the
appellate court may summarily dismiss the petition if:

i) The evidence is sufficient to support the conviction;

ii) There is no new material in the circumstances of the

case which could raise a reasonable doubt whether the
conviction was right or lead the judge to the opinion
that the sentence ought to be reduced (s. 352(2), CPC).
Except for the two reasons above, no appeal should
be rejected summarily (s. 352(1), CPC; Abdi Wali Hassan v
R Court of Appeal at Nyeri Criminal Appeal No. 49 of 2015;
James Obiri v R Court of Appeal at Kisumu Criminal Appeal
No. 58 of 1981). Summary rejection of appeals must be done
sparingly and only when it is clear that the appeal is brought
solely on the ground either that the weight of the evidence
does not support the conviction or that the sentence is
excessive (Okello v R Court of Appeal at Kisumu Criminal
Appeal No. 172 of 2002; Ngera Kamau Wahome v R Court of
Appeal at Nyeri Criminal Appeal No. 61 of 2001).

Where an appeal is summarily rejected, the court must

certify that it reviewed the record and is satisfied that there
were no sufficient grounds for the complaint. It must also
issue a notice of rejection to the appellant or his advocate
and to the Director of Public Prosecutions (s. 352(2 &

3), CPC; Abdi Wali Hassan Kher v R Court of Appeal at Nyeri

Criminal

Appeal No. 49 of 2015).

An aggrieved party may appeal the summary rejection of

appeal. In Moses Rafiki Kazungu v R Court of Appeal at
Malindi Criminal Appeal No. 89 of 2014, the appellant
appealed against summary rejection of his appeal, which
had raised both points of law and fact, and the appellate
court quashed the summary rejection (see also Obiri v R
[1981] KLR

493 Criminal Appeal at Kisumu Appeal No. 58 of 1981).

Summary Granting of Appeals

An appeal may be summarily allowed when a High Court

judge is satisfied that the weight of the evidence does not
support a conviction and there is communication, in
writing, from the Director of Public Prosecutions confirming
that the Office of the DPP does not support the conviction
(s. 352A, CPC). In Gulam Sadik v R (High Court at Mombasa
Criminal Appeal No. 198’B’ of 2001), for example, the court
ordered a new trial because the Attorney-General conceded
that glaring procedural violations had occurred. The judge
should not allow the appeal simply because the Office of the
Director of Public Prosecutions does not support the
conviction, but should personally be satisfied that this is
the right course of action (Topika Ole Murumbi v R High Court
at Nakuru Criminal Appeal No. 370 of 2003).

Where an appeal is not summarily dismissed, the court

must notify the parties of the time and place where the
appeal will be heard (s. 353, CPC).

III. Appeals from the High Court to the

Court of Appeal

A person can appeal against a conviction to the Court

of Appeal (s. 379(1)(a), CPC), or against sentence, except
when the sentence is fixed by law (s. 379(1)(b), CPC). Leave
of the Court of Appeal must be obtained for an appeal
against sentence (s. 379(1)(b), CPC). However, the
constitutionality of this provision may now be in doubt, in
view of the right to appeal in Article 50(2)(q).

In a first appeal to the Court of Appeal, it has jurisdiction

to adjudicate legal and factual matters (s. 379(1) & (2), CPC;
r. 29(1), Court of Appeal Rules 2010; Mabel Kavati & Another
v R Court of Appeal at Nairobi Criminal Appeal No. 509 of
2010; Okeno v R [1972] EA 32).
 The jurisdiction of the Court of Appeal in second appeals
is limited to matters of law (s. 361(1), CPC; Mohamed Famau
Bakari v R Court of Appeal at Malindi Criminal Appeal No.
64 of 2015; Naftali Mwenda Mutua v R Court of Appeal at
Nyeri Criminal Appeal No. 137 of 2014; M’Riungu v R [1983]
KLR 455; Kaingo v R (1982) KLR 213).

Pursuant to rule 29 of the Court of Appeal Rules, on a first

appeal the court has the power:

i) to re-appraise the evidence and to draw inferences

of fact; and
ii) to take additional evidence if there is sufficient reason
to do so (Marcarios Itugu Kanyoni v R Court of Appeal
at Nyeri Criminal Application No. 5 of 2011; Brown
Tunje Ndago v R Court of Appeal at Mombasa Criminal
Appeal (Application) No. 12 of

2012). A sufficient reason may exist if an appellant

would suffer a great injustice if the evidence is not
taken or if the decision of the first appellate court
would have been different had the evidence been
taken (Marcarios Itugu Kanyoni v R Court of Appeal at
Nyeri Criminal Application No. 5 of 2011).

When additional evidence is taken by the court, it may be

given orally or by affidavit, and the court may allow the
cross-examination of any deponent. The accused’s right to
challenge evidence at trial (art. 50(2) (k), CoK) would apply
to adverse evidence in appeal proceedings. The parties to
the appeal are entitled to be present when additional
evidence is taken.

The Court of Appeal will not interfere with the findings of

fact of the trial court or the first appellate court unless:
the findings were based on no evidence at all; the findings
were based on a perversion of the evidence; or if no court
that had followed the evidence could have reasonably
reached the same conclusion as the lower court (Mohamed
Famau Bakari v R Court of Appeal at Malindi Criminal
Appeal No. 64 of 2015).

The Director of Public Prosecutions may appeal to the Court

of Appeal if the DPP believes that an acquittal was based
on an error of law or fact (s. 348A, CPC). If the appeal
succeeds, the court may substitute the acquittal with a
conviction and proceed to sentence (s. 348A, CPC). In R v
Danson Mgunya (Court of Appeal at Mombasa Criminal
Appeal No. 21 of 2016), the court held that section 348A
did not violate the principle of double jeopardy because an
appeal does not ‘constitute a new or different and distinct
trial’.
 If an accused is acquitted in a trial in the High Court that the
DPP believes involves a matter of law of exceptional public
importance, the DPP may request that the Court of Appeal
determine that matter (s. 379(5), CPC). In such a case, the
Court of Appeal delivers a declaratory judgment that is
binding on lower courts but does not overturn the acquittal
(s. 379(6), CPC; R v Danson Mgunya Court of Appeal at
Mombasa Criminal Appeal No. 21 of 2016).

The DPP may also seek the Court of Appeal’s review of a

sentence imposed by the High Court. The Court of Appeal
may maintain or enhance the sentence in the interests of
justice (s. 379(5A), CPC; R v Edward Kirui Court of Appeal
at Nairobi Criminal Appeal No. 198 of

2010)
.

Documentation on Appeal to the Court of Appeal

Notice of Appeal

An appeal to the Court of Appeal is initiated by lodging a

notice of appeal (r. 59(1), Court of Appeal Rules 2010; Feisal
Mohammed Ali alias Feisal Shahbal Court of Appeal at
Malindi Criminal Application No. 2 of 2015). The notice of
appeal must be lodged in the High Court within 14 days
from the date of the decision intended to be appealed
against.

Record of Appeal
Once a notice of appeal is lodged, the registrar of the High
Court prepares a record of appeal.

The record of appeal must contain copies of the following

documents in the following order (r. 62(2), Court of Appeal
Rules 2010):
i) an index of all documents in the record that includes
the page numbers at which each document begins, the
names of the witnesses, and the pages of the record
(including the trial judge’s notes, the transcript, or
shorthand notes) at which the witnesses’ evidence
appears;

ii) the information, indictment or charge;

iii) the trial judge’s notes of the hearing, including

those of the sentencing and any post-sentencing
hearings;

iv) the transcript of any shorthand notes taken at the

trial;

v) a list of all trial exhibits;

vii) all documentary exhibits, photographs and plans put

in at the trial, and all depositions submitted because
an intended witness was absent.

The registrar of the High Court should not prepare the

record of appeal where:

i) The Notice of Appeal has not been filed within the

required time

unless either:

a. the Chief Justice, the High Court, or the Court

of Appeal orders that the untimely notice be
lodged; or
 b. the Court of Appeal has ordered that the time for
filing be extended (r. 62(5)(a), Court of Appeal
Rules 2010; R v Paul Wainaina Boiyo alias Sheki &
5 Others High Court at Nairobi Criminal Case No. 8
of 2014);

ii) The prescribed fee has not yet been paid (r.
62(5)(c), Court of

Appeal Rules 2010).

Memorandum of Appeal

Within fourteen days after service of the record of appeal on

the appellant, he or she must lodge a memorandum of
appeal with the Registrar or Deputy Registrar ‘at the place
where the appeal is to be heard’ (r. 64(1), Court of Appeal
Rules 2010).

The Memorandum of Appeal must set out the grounds upon

which the appeal is based. For a first appeal, the grounds
may raise both points of law and points of fact. For a second
appeal, the Memorandum may only raise points of law (r.
64(2), Court of Appeal Rules 2010).

Filing a Memorandum of Appeal Out of Time

The Memorandum of Appeal should be concise (Henry Karanja

Muiri v

R Court of Appeal at Nairobi Criminal Appeal No. 384 of

2010).

If a Memorandum of Appeal is not filed within the required

time, the court may either dismiss the appeal or set a
hearing to address the late filing. Once dismissed, the
appeal may only be restored if the appellant shows
sufficient cause for the late filing (r. 64(5), Court of Appeal
Rules
 2010). The court may, on such terms as it thinks just,
extend the time for filing the Memorandum (r. 4, Court of
Appeal Rules 2010).

Withdrawal of Appeal

An appellant may withdraw an appeal by filing a written

notice to the Registrar (r. 68(1), Court of Appeal Rules
2010). A withdrawn appeal may, however, be restored by
leave of the court if it is satisfied that the

‘withdrawal was induced by fraud or mistake and that

the interests of justice require that the appeal be heard’ (r.
68(3), Court of Appeal Rules

2010).
Hearing of Appeal

The appellant and the State are entitled to attend the

appeal hearing (r. 71(1), Court of Appeal Rules 2010). The
appellant or the respondent, where the state is the
appellant, may opt not to attend the hearing, in which case
the party should submit a statement of the arguments in
lieu of attendance (r. 66, Court of Appeal Rules 2010). If
the appellant is represented by an advocate or has
submitted a statement under rule 66 of the Court of Appeal
Rules, the appellant need not attend the hearing unless
required to do so by the court (rr. 71(2) & (3), Court of
Appeal Rules 2010; J C S v R Court of Appeal at Nyeri
Criminal Appeal No. 219 of 2011). Written statements and
oral statements made at the hearing are given equal
consideration (r. 72(b), Court of Appeal Rules 2010).

During the hearing, the appellant is restricted to the

grounds of appeal raised in the Memorandum of Appeal or
Supplementary Memorandum unless the court permits the
appellant to raise other grounds (r. 72(a), Court of Appeal
Rules 2010).

Orders on Appeal
 If the Court of Appeal sets aside or varies the decision of the
subordinate court or of the first appellate court, it may:

i) Make any order that the subordinate court or the

first appellate

court could have made; or

ii) Remit the case, together with its judgment or order,

to the first appellate court or to the subordinate court
for determination with any directions it deems
necessary (s. 361(2) CPC; r. 31, Court of Appeal Rules
2010; Robert Mutungi Muumbi v R Court of Appeal at
Malindi Criminal Appeal No. 5 of 2013).

With regard to an appeal against sentence, the Court of Appeal

may:

i) Affirm the sentence previously imposed or

impose another

sentence; or
 ii) If a party to an appeal has been convicted of an
offence and the subordinate court or first appellate
court could have lawfully found him guilty of another
offence, the Court of Appeal may change the conviction
to the other offence and impose an appropriate
sentence (s. 361(3), CPC; A M & 2 Others v R Court of
Appeal at Nairobi Criminal Appeal No. 19 of 2007).

IV. Appeals from the Court of Appeal to the Supreme

Court

Except for matters that involve the interpretation or

application of the Constitution, appeals to the Supreme
Court must first be certified as involving a matter of general
public importance.

The Constitution refers to ‘certification’ while the Supreme

Court Act refers to ‘leave of the court’. These two terms have
the ‘same legal meaning’ (Lawrence Nduttu & 6000 Others
v Kenya Breweries & Another Supreme Court Petition No.
3 of 2012).1

An application for leave to appeal to the Supreme Court

may be made either to the Court of Appeal or to the
Supreme Court (art. 163(4)(b), CoK; s. 16(2)(a), Supreme
Court Act 2011 (SKA)). A two-judge bench of the Supreme
Court has stated that it is good practice to approach the
Court of Appeal in the first instance (Sum Model Industries
Ltd v Industrial and Commercial Development Industries
Supreme Court Civil Application No. 1 of 2011). The
 Supreme Court may review a certification by the Court of
Appeal and either affirm, vary, or overturn it (s. 16(5), SCA).
The refusal to certify an application made to the Court of
Appeal may be appealed to the Supreme Court.

Although section 16(2)(b) of the Supreme Court Act also

states that leave to appeal to the Supreme Court may be
granted if ‘substantial injustice may have occurred or may
occur if the appeal is not heard,’ the

1 Application for leave to appeal to the Supreme Court

applies to both civil and criminal matters. Decisions in civil
matters are therefore instructive in criminal matters.
 Supreme Court declared that this section was
unconstitutional because it conflicted with Article 163(4)(b)
of the Constitution (Malcolm Bell v Daniel Toroitich Arap Moi
& Another Supreme Court Application No. 1 of 2013).

Retrial

When deciding whether to order a retrial, having decided

to overturn a conviction or acquittal, an appellate court
should be guided by the facts and circumstances of the
case. In all cases, however, the ultimate consideration must
be whether the interests of justice demand a retrial (Benard
Lolimo Ekimat v R Court of Appeal at Eldoret Criminal
Appeal No. 151 of 2004; Dennis Leskar Loishiye v R Court of
Appeal at Nairobi Criminal Appeal No. 24 of 2015).

A re-trial would ordinarily be ordered when it would be in the

interests of justice to do so, or where an injustice has been
caused by an irregularity or illegality during trial (Samwel
Ngare Kayaa & Another v R Court of Appeal at Mombasa
Criminal Appeal No. 5 of 2011; Muiruri v R [2000] KLR 552;
Makupe v R Court of Appeal at Mombasa Criminal Appeal
No. 98 of 1983).

If the conviction is overturned because the prosecution’s

case was insufficient or inadequate, a retrial is not
appropriate. (Makupe v R Court of Appeal at Mombasa
Criminal Appeal No. 98 of 1983; Fatehali Manji v R [1966]
EA 343).
Further, the court should not order a retrial if it would not
be possible to conduct a new trial because witnesses were
no longer available (Roy Richard Elirema & Another v R
Court of Appeal at Mombasa Criminal Appeal No. 67 of 2002;
Munyole v R Court of Appeal at Kisumu Criminal Appeal No.
97 of 1985)
A retrial should not be ordered if it would violate the interests of justice.

In Benard Lolimo Ekimat v R (Court of Appeal at Eldoret Criminal Appeal No.

151 of 2004), for example, the court held that it was not in the interests of
justice to retry the accused in view of the length of time he had already spent in
prison. In Makupe v R (Court of Appeal at Mombasa Criminal Appeal No. 98 of
1983), the court held that a retrial would violate the interests of justice because
the appellant was not to blame for the weaknesses of the prosecution’s case.