Oliver Munyaka Kabulu v Republic [1984] KECA 41 (KLR)
The bottom line
#Kenya's Court of Appeal couldn't decide whether court martial verdicts can be appealed twice, so it passed the question to a larger panel of five judges.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to apply for a certificate of appeal and file a second appeal against the decision of the High Court dismissing his appeal from the court martial
- 2.Whether this Court has jurisdiction to entertain a second appeal from a decision of a court martial, notwithstanding the prior decision in Onyango
- 3.Whether the right of appeal from one tribunal to another must be conferred by statute or exists unless forbidden by statute
Key legal issues
#Whether a second appeal lies from a court martial to the Court of Appeal
The court declined to decide the point on the motion, noting two conflicting approaches: Onyango held there is no second appeal from a court martial absent statutory provision, while Munene and National Telephone suggest the opposite approach that a right of appeal exists unless forbidden by statute.
The bench was referred to Munene v The Republic (No.2) and National Telephone Co Ltd, authorities not cited in Onyango, which support a presumption of a right of appeal unless the relevant statute forbids it, as section 121 of the Armed Forces Act did until replaced. Because Onyango was a unanimous decision of three judges and Munene a majority of two, and the point goes to jurisdiction, the court chose to refer the matter to a full bench of five judges rather than resolve it itself.
Inappropriateness of the application insofar as brought under Rule 40(b) for a certificate
The certificate limb of the application was inappropriate because counsel identified no substantive provision requiring such a certificate before an appeal to this Court.
Counsel relied on Rule 40(b) and referred to a certificate in his affidavit, but did not point to any substantive provisions requiring a certificate of a point of law of general public importance for the appeal to lie. The court held that an appeal either lies or does not, so the certificate part of the application was misconceived.
Legal principles established
#- Where no appeal lies unless a superior court certifies that a point of law of general public importance is involved, the application for the certificate may be made informally at the time of the decision or by motion or chamber summons within fourteen days.
- An appeal either lies or it does not lie; a certificate is not a device that can create a right of appeal where none exists.
- Rule 41 requires applications to be made in the first instance to the superior court, though in criminal matters this Court may in its discretion give leave or extend time notwithstanding that no application was made to the superior court.
Court orders
#- 1.The application is adjourned for the jurisdictional issue to be resolved either by legislation or by a decision of a full court of five judges
- 2.The application is referred to a full bench of 5 judges
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Criminal Appeal heard by Mr Justice Gicheru
- Jurisdiction invoked
- Rules 4, 40(b) and 41 of the Court of Appeal Rules, in relation to an intended second appeal from a court martial under the Armed Forces Act (cap 199)
Relief refused
#Immediate determination of the application for extension of time and the certificate
The court deemed it improper to decide the application while the existence of the right of second appeal from a court martial remained unresolved
Costs
No costs order made in the judgment.
Quotable passages
#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 application is, therefore, adjourned for the issue to be resolved in the manner we have proposed.
in the exercise of our discretion we deem it proper to refer the application to a full bench of 5 judges
In our view an appeal lies or it does not lie and there is no question of any certificate.
Issues in the judgment
#The judgment first states that Onyango established there was no statutory provision for a second appeal from a court martial, but then records the court referring the very same question to a full bench as unresolved; the text is internally consistent as a referral but the jurisdictional position is left open.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oliver Munyaka Kabulu v Republic [1984] KECA 41 (KLR)", Case Analysis (1984). Motion on Notice dated June 12, 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/41/eng@1984-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.