JUSTINE TUNJE MBARU v REPUBLIC [2010] KECA 140 (KLR)
- Court
- Court of Appeal
- Case number
- 140
- Citation
- [2010] KECA 140 (KLR)
- Decided
- 23 July 2010
The appeal is allowed, the order summarily rejecting it is set aside, and the appeal is remitted to the High Court for hearing before a different judge.
Facts
The appellant, JUSTINE TUNJE MBARU, was convicted of rape and an alternative count of indecently assaulting the complainant. The complainant alleged that the appellant grabbed her by the neck, threatened her with death, and raped her in the bush.
Issues
- whether the summary rejection of the appeal was appropriate
- whether the sentence was excessive
Reasoning
The court found that the appeal was not brought on the ground that the conviction was against the weight of the evidence or the sentence was excessive, and thus was not within the scope of Section 352(2) of the Criminal Procedure Code. The court allowed the appeal and remitted it to the High Court.
Outcome
Appeal allowed, order summarily rejecting the appeal set aside, and appeal remitted to the High Court for hearing before a different judge.
Orders
- Order summarily rejecting the appeal set aside
- Appeal remitted to the High Court for hearing before a different judge
Authorities cited
Legislation (2)
- Criminal Procedure Code
- Penal Code
Cases cited (2)
- OMBENA VS REPUBLIC [1981] KLR 450
- JOHN MWANGI VS REPUBLIC [1983] KLR 652
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