Kariuki v Republic [1985] KECA 148 (KLR)
The bottom line
#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 Court of Appeal has jurisdiction to entertain an appeal from a High Court refusal to admit an appeal out of time under the proviso to section 349 of the Criminal Procedure Code
- 2.Whether the exercise of discretion by the High Court on incomplete or mistaken facts, including the undisclosed letter of the appellants' advocate, could found an appeal to this Court
Key legal issues
#Jurisdiction of the Court of Appeal over refusals to admit appeals out of time
The Court has no jurisdiction to entertain appeals from such refusals; the appeals were dismissed as incompetent.
Section 361(1) of the Criminal Procedure Code, which permits appeals on matters of law, is expressly made subject to subsection (8), inserted by the Statute Law Miscellaneous Amendments Act, 1978. That subsection excludes from section 361 any refusal by the High Court to admit an appeal out of time under section 349 and declares such refusal final. Since the right of appeal must be founded in statute and the Court has no inherent jurisdiction, the present appeals, being from such a refusal, could not be entertained.
Exercise of discretion on incomplete or mistaken facts as a matter of law
Counsel for the Republic conceded, and the Court acknowledged, that an exercise of discretion on incomplete or mistaken facts could amount to a matter of law appealable under section 361(1) - but that provision does not apply here.
The Court noted that a letter from the appellants' advocate dated June 16, 1984, showing that appeals had been instructed and a memorandum filed, existed but was not before Bhandari J or State Counsel. The Republic conceded the judge would likely have exercised his discretion differently had he known. Nevertheless, the concession on appealability could not overcome the express statutory exclusion in section 361(8).
Legal principles established
#- The Court of Appeal has no inherent jurisdiction and may hear only appeals whose right is conferred by statute
- A refusal by the High Court to admit an appeal out of time under section 349 is final and is excluded from the scope of section 361
Court orders
#- 1.Both appeals dismissed as incompetent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Mombasa
- null
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (as it applies, and does not apply, to appeals to the Court of Appeal); right of appeal conferred by statute only
- Consolidated with
- Second appellant's appeal; the two appeals were consolidated by the Court of Appeal
Relief refused
#Hearing of the appeals against the High Court's refusal to admit the appeals out of time
The Court of Appeal has no statutory jurisdiction over such refusals, which are final under section 361(8)
Costs
No costs order recorded 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.
It has been said many times by this Court that we have no inherent jurisdiction, and that we can only hear an appeal if the right thereof is conferred by statute.
sub-section (8) of section 361, added by the Statute Law Miscellaneous Amendments Act, 1978 specifically states that the section shall not apply to a refusal by the High Court to admit an appeal out of time under section 349, and that such refusal shall be final.
However for the reasons stated we clearly have no jurisdiction in the matter and it follows that both appeals must be dismissed as incompetent.
Issues in the judgment
#The record erroneously dates the appellants' delay to July 1983 rather than July 1984, an error the Court itself noted
The judgment does not set out the case numbers or full names of the appellants, referring to them only as the first and second appellants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Republic [1985] KECA 148 (KLR)", Case Analysis (1985). Criminal Appeals (consolidated) from Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/148/eng@1985-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.