PART X
APPEALS

(a) Appeals Generally

359.-(1) Save as hereinafter provided, any person aggrieved by any finding, sentence or order made or passed by a subordinate court other than a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act may appeal to the High Court and the subordinate court shall at the time when such finding, sentence or order is made or passed, inform that person of the period of time within which, if he wishes to appeal, he is required to give notice of his intention to appeal and to lodge his petition of appeal.

(2) Any appeal to the High Court may be on a matter of fact as well as on a matter of law.


360.-(1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence.

(2) Except with the leave of the High Court, no appeal shall be allowed in cases in which a subordinate court has passed a sentence of a fine not exceeding one thousand shillings only, or of corporal punishment only imposed on a person under sixteen years of age, or from a sentence of imprisonment in default of the payment of a fine if no substantive sentence of imprisonment has been passed.

(3) No sentence which would not otherwise be liable to appeal shall be appealable on the ground that the person convicted is ordered to find security to keep the peace.


361.-(1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shall be entertained unless the appellant–

(a) has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and
(b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence or order,
(c) save that in computing the period of forty-five days the time required for obtaining a copy of the proceedings, judgment or order appealed against shall be excluded.

(2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed.


362.-(1) Every appeal shall be made in the form of a petition in writing presented by the appellant or his advocate, and every petition shall, unless the High Court otherwise directs, be accompanied by a copy of the proceedings judgment or order appealed against.

(2) The petition shall contain particulars of the matters of law or of fact in regard to which the subordinate court appealed from is alleged to have erred.


363. If the appellant is in prison, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the prison, who shall thereupon forward the petition and copies to the Registrar of the High Court.


364.-(1) On receiving the petition and copy required by section 362, the High Court shall peruse them and–

(a) if the appeal is against sentence and is brought on the grounds that the sentence is excessive and it appears to the court that there is no material in the circumstances of the case which could lead it to consider that the sentence ought to be reduced;
(b) if the appeal is against conviction and the court considers that the evidence before the lower court leaves no reasonable doubt as to the accused's guilt and that the appeal is frivolous or is without substance; or
(c) if the appeal is against conviction and the sentence and the court considers that the evidence before the lower court leaves no reasonable doubt as to the accused's guilt and that the appeal is frivolous or is without substance and that there is no material in the judgment for which the sentence ought to be reduced,

the court may forthwith summarily reject the appeal by an order certifying that upon perusing the record, the court is satisfied that the appeal has been lodged without any sufficient ground of complaint.

(2) Notice of any order made under the provisions of this section shall be forthwith given to the Director of Public Prosecutions.


365.-(1) If the High Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his advocate, and to the Director of Public Prosecutions, of the time and place at which the appeal will be heard and shall furnish the Director of Public Prosecutions with a copy of the proceedings and of the grounds of appeal; save that notice need not be given to the appellant or his advocate if it has been stated in the petition of appeal that the appellant does not wish to be present and does not intend to engage an advocate to represent him at the hearing of the appeal.

(2) Where notice of time, place of hearing cannot be served on any person because he cannot be found through the address obtained from him by the court under section 228 or 275, the notice shall be brought to his attention in the manner prescribed by section 381.


366.-(1) At the hearing of the appeal, the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the public prosecutor, if he appears, may then address the court and thereafter, the court may invite the appellant or his advocate to reply upon any matters of law or of fact raised by the public prosecutor in his address and the court may then, if it considers there is no sufficient ground for interfering, dismiss the appeal or may–

(a) in an appeal from a conviction–

(i) reverse the finding and sentence and acquit the accused or discharge him under section 38 of the Penal Code or order him to be re-tried by a court of competent jurisdiction or direct the subordinate court to hold committal proceedings;
(ii) alter the finding, maintaining the sentence or, with or without altering the finding, reduce or increase the sentence; or
(iii) with or without such reduction or increase of sentence and with or without altering the finding, alter the nature of the sentence;

(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;
(c) in an appeal from any other order, alter or reverse such order
and, in any such case, may make any amendment or any consequential or incidental order that may appear just and proper.

(2) An appellant, whether in custody or not, shall be entitled to be present at the hearing of his appeal.

(3) The right of an appellant who is in custody to be present at the hearing of the appeal shall be subject to his paying all expenses incidental to his transfer to and from the place where the court sits for the determination of the appeal; save that the court may direct that the appellant be brought before the court in any case in which, in the opinion of the court, his presence is desirable for the due determination of the appeal, in which case such expenses shall be defrayed by the Government.

(4) Nothing in this section shall be construed as precluding the court from inflicting a greater punishment than the punishment which might have been inflicted by the court which imposed the sentence.


367.-(1) When a case is decided on appeal by the High Court, it shall certify its judgment or order to the court by which the conviction, sentence or order appealed against was recorded or passed.

(2) The court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court and, if necessary, the records shall be amended accordingly.


368.-(1) After the entering of an appeal by a person entitled to appeal, the High Court or the subordinate court which convicted or sentenced such person may, for reasonable cause to be recorded by it in writing–

(a) in the case of a person sentenced to a term of imprisonment, order–

(i) that such person be released on bail with or without sureties pending the hearing of his appeal; or
(ii) that the execution of the sentence appealed against be suspended pending the hearing of his appeal in which case he shall be treated as a remand prisoner pending the hearing of his appeal; and

(b) in any other case, order that the execution of the sentence or order appealed against be suspended pending the hearing of his appeal.

(2) If the appeal is ultimately dismissed and the original sentence (being a sentence of imprisonment) is confirmed or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.


369.-(1) In dealing with an appeal from a subordinate court, the High Court if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.

(2) When the additional evidence is taken by a subordinate court, that court shall certify the evidence to the High Court which shall thereupon proceed to dispose of the appeal.

(3) Unless the High Court otherwise directs, the appellant or his advocate shall be present when the additional evidence is taken.

(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court.


370.-(1) Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice directs that an appeal be heard by two or more judges of the High Court and such direction shall be given before the hearing of the appeal or at any time before judgment is delivered.

(2) If on the hearing of an appeal the High Court is equally divided in opinion the appeal shall be dismissed.


371.-(1) An appeal may be withdrawn at any time before hearing by a written notice to the Registrar signed by the appellant or his advocate, and upon that notice being given the appeal shall be marked withdrawn.

(2) When any appeal is withdrawn, the Registrar shall forthwith notify the respondent and the subordinate court in which that case originated.

(3) An appeal which has been withdrawn may be restored by leave of the court on the application of the appellant if the court is satisfied that there are sufficient reasons that the appeal be heard.


371A. Every appeal from a subordinate court (except an appeal from a sentence of fine) shall abate on the death of the appellant.

PART X
APPEALS

(c) Appeals by Director of Public Prosecutions

378.-(1) Where the Director of Public Prosecutions is dissatisfied with an acquittal, finding, sentence or order made or passed by a subordinate court, other than a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act, he may appeal to the High Court.

(2) An appeal to the High Court under this section may be on a matter of fact as well as on a matter of law.


379.-(1) Subject to subsection (2), no appeal under section 378 shall be entertained unless the Director of Public Prosecutions or any person acting under his instructions in terms of sections 22 and 23 of the National Prosecutions Service Act– of 2008

(a) has given notice of his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes to appeal and the notice of appeal shall institute the appeal; and
(b) has lodged his petition of appeal within forty-five days from the date of such acquittal, finding, sentence or order; save that in computing the said period of forty-five days the time requisite for obtaining a copy of the proceedings, judgment or order appealed against or of the record of proceedings in the case shall be excluded.

(2) The High Court may, for good cause, admit an appeal notwithstanding that the periods of limitation prescribed in this section have elapsed.


380.-(1) Every appeal under section 378 shall be made in the form of a petition in writing presented by the Director of Public Prosecutions and shall, unless the High Court otherwise directs, be accompanied by a copy of the proceedings, judgment or order appealed against.

(2) The petition shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred.


381.-(1) Where a petition of appeal is lodged with the High Court in accordance with the provisions of section 380 the High Court shall cause notice to be given to the respondent or to his advocate, and every such notice shall state the time and place at which the appeal will be heard and shall be accompanied by a copy of the petition of appeal and a copy of the proceedings, judgment or order appealed against.

(2) Where notice of time, place and hearing cannot be served on the respondent because he cannot be found through the address obtained by the court under section 228 and 275 the notice shall be brought to his attention through publication in a newspaper three times, and at the end of that service the court shall proceed with the appeal in the absence of the respondent.


382.-(1) At the hearing of an appeal under section 378 the Director of Public Prosecutions may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the court and thereafter the court may invite the Director of Public Prosecutions to reply upon any matter of law or fact raised by the respondent or his advocate and the court may then, if it considers there is not sufficient ground for interfering, dismiss the appeal or may–

(a) in an appeal from acquittal–

(i) reverse the finding, convict the respondent of the offence with which he could have been convicted by the subordinate court, and either proceed to sentence him or remit the case to the subordinate court for passing the sentence;
(ii) order the respondent to be tried by a court of competent jurisdiction; or
(iii) direct the subordinate court to hold committal proceedings;

(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence; or
(c) in an appeal from any other order, alter or reverse such order and, in any case, may make any amendment or any consequential or incidental order that may appear just and proper.


383.-(1) Where, on the day fixed for the hearing of an appeal under section 378 or any other date to which the hearing may be adjourned the Director of Public Prosecutions does not appear when the appeal is called on for hearing, the High Court may make an order that the appeal be dismissed.

(2) Where the Director of Public Prosecutions appears and the respondent or his advocate does not appear and the High Court is satisfied that the respondent or his advocate was duly served with notice of appeal, the High Court may proceed to hear the appeal ex-parte or may adjourn the hearing to another date and give notice thereof to the respondent or his advocate.

(3) When an appeal is dismissed under subsection (1) the Director of Public Prosecutions may apply to the court for the re-admission of the appeal and, where he satisfies the court that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing the High Court, may re-admit the appeal.

(4) Where at the hearing of an appeal the respondent does not appear personally the High Court may make an order requiring the personal attendance of the respondent and, if the respondent fails to comply with such order, may issue a warrant for the arrest and production of the respondent before the High Court on a date and time specified in the warrant.


384.-(1) In dealing with an appeal under section 378 the High Court, if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.

(2) When the additional evidence is taken by a subordinate court that court shall certify the evidence to the High Court which shall thereupon proceed to dispose of the appeal.

(3) No additional evidence shall be taken under this subsection save in the presence of the respondent or his advocate and such evidence shall be taken as if it were evidence taken at a trial before a subordinate court.


385. The provisions of section 370 shall apply to appeals under section 378.


386.-(1) The Director of Public Prosecutions may at any time before the hearing withdraw an appeal by a written notice to the Registrar, and upon that notice being given the appeal shall be marked withdrawn.

(2) When an appeal is withdrawn, the Registrar shall forthwith notify the respondent and the subordinate court in which that case originated.

(3) An appeal withdrawn under subsection (2), may be restored by leave of the court on the application by the Director of Public Prosecutions if the court is satisfied there are sufficient reasons that the appeal be heard.


386A. Every appeal under section 378 shall abate on the death of the respondent.