Jopley Constantine Oyieng v Republic [1988] KECA 126 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that private citizens cannot use constitutional provisions to launch private prosecutions—that power rests with the Attorney-General and the courts.
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 party (as opposed to the subordinate court) could invoke section 67(1) of the Constitution to refer a constitutional question to the High Court
- 2.Whether the appellant could bring an application under section 84 of the Constitution to pursue a private prosecution
- 3.Whether the appeal to the Court of Appeal was competent
Key legal issues
#Invocation of section 67(1) of the Constitution
The reference mechanism under section 67(1) belongs to the subordinate court; where no such reference is made and no question of constitutional interpretation arises in the subordinate court, the section does not apply.
The court held that where a constitutional question arises in subordinate court proceedings, the magistrate may refer it to the High Court if a substantial question of law is involved. The party cannot itself mount the reference; it can only ask the subordinate court to do so. Since nothing before the Chief Magistrate concerned interpretation of the Constitution, section 67 did not apply.
Section 84 enforcement of fundamental rights and private prosecution
A person seeking to institute a private prosecution cannot use section 84 unless he alleges contravention of a provision of sections 70 to 83 of the Constitution; a right to prosecute privately is not such a right, and section 26 vests criminal prosecutions in the Attorney-General.
The court reasoned that section 84 applies only where a person alleges that provisions of sections 70 to 83 have been, are being, or are likely to be contravened. The appellant was pursuing a right to file a private prosecution, which the Constitution does not extend to private individuals; section 88(1) of the Criminal Procedure Code does not override section 26 of the Constitution. The appellant also failed to show he was within sections 79 to 83.
Competence of the appeal
There being no statutory right of appeal from a matter under section 67(1), the appeal before the Court of Appeal was not a criminal appeal and was incompetent.
The court observed that even if the High Court matter had concerned section 67(1) of the Constitution, no right of appeal had been given. Rights of appeal can only be created by statute. Accordingly the appeal was not a criminal appeal and was struck out.
Legal principles established
#- Under section 67(1) of the Constitution, it is the subordinate court, not the party, that makes the reference to the High Court; the party may only request the reference.
- Section 88(1) of the Criminal Procedure Code does not override section 26 of the Constitution; only the Attorney-General has the constitutional right to institute criminal proceedings, with no equivalent private right.
- A right of appeal exists only if conferred by statute.
Court orders
#- 1.The appeal is struck out as incompetent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Criminal application number 467 of 1987, Nairobi (as identified in the judgment)
- Jurisdiction invoked
- Sections 67 and 84 of the Constitution of Kenya; appeal against an order of the High Court
Relief refused
#Leave to pursue the constitutional application under sections 67 and 84 of the Constitution
The application was incompetent: only the subordinate court may refer a question under section 67(1), and the appellant failed to show he was within sections 79 to 83 of the Constitution
A right of appeal against a section 67(1) reference
No right of appeal has been given by statute
Costs
No costs order is stated 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.
So it is the subordinate court which makes the reference under section 67 (1) of the Constitution of Kenya (the Constitution), not the party.
One hurdle the appellant does not get over even under section 84 of the Constitution is that he fails to show he is within sections 79 to 83 (inclusive) of the Constitution.
This therefore, was not a criminal appeal. We hold that the appeal is incompetent and is struck out.
Issues in the judgment
#The names of the parties are not stated anywhere in the judgment; the parties are identified only as 'the appellant' and, by reference to counsel, 'Mr Chunga, the D.P.P.'
The judgment does not state a case number for the appeal itself, nor the outcome of the High Court hearing on 12th February 1988 beyond the order being against the appellant.
The judgment contains no costs order despite striking out the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jopley Constantine Oyieng v Republic [1988] KECA 126 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/126/eng@1988-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.