Clay Godwin Wambulwa v Republic [1989] KECA 17 (KLR)
The bottom line
#Kenya's Court of Appeal voided a criminal appeal hearing because it happened without the appellant present and without proper judicial authority.
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 direction by Mbogholi, J and Commissioner of Assize Behan vacating Shields, J's order that the appeal be heard by two judges was lawful
- 2.Whether the appeal proceedings presided over by the Commissioner of Assize were a nullity for want of the Chief Justice's authority in writing
- 3.Whether the hearing of the appeal in the appellant's absence and without representation, despite an order for his production, was an incurable irregularity
Key legal issues
#Lawful constitution of the bench hearing the appeal under section 359(1) of the Criminal Procedure Code
The subsequent direction by Mbogholi, J and Commissioner of Assize Behan vacating Shields, J's order was an error of law because they lacked the Chief Justice's written authority, rendering the proceedings before the Commissioner a nullity.
Section 359(1) of the Criminal Procedure Code governs the constitution of the bench hearing the appeal. Shields, J, acting on a direction by the Chief Justice, had directed that the appeal be heard by two judges. The later purported vacation of that order was made without the Chief Justice's authority in writing, so the two judges had no power to make it. Proceedings conducted under an ultra vires direction are void and go to the root of the appeal.
Right of an appellant to be present at the hearing of his appeal
The hearing of the appeal in the appellant's absence, when he had indicated he wished to be present and a production order had been made, was an incurable irregularity.
The appellant had expressed his wish to attend the hearing of his appeal and an order was made for his production. On the hearing date he was absent and unrepresented. The court treated this as an incurable irregularity that could not be cured by the proviso, contributing independently to the setting aside of the decision below.
Legal principles established
#- Only the Chief Justice acting in writing may direct that a criminal appeal be heard by a bench other than that properly constituted; a direction made without that authority in writing renders the resulting proceedings a nullity.
- Hearing a criminal appeal in the absence of an appellant who wished to be present and for whose production an order had been made is an incurable irregularity.
Court orders
#- 1.Set aside the judgment and orders of the High Court
- 2.Order that the appeal be heard with dispatch by a bench of two judges other than the two who have dealt with the matter
- 3.Order that the appeal be heard at Kisumu High Court
- 4.Appellant to remain in custody until his appeal is heard and determined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Commissioner of Assize Behan)
- Not stated in the judgment
- Jurisdiction invoked
- Second appellate jurisdiction under the Criminal Procedure Code, including section 359(1) on constitution of the bench hearing the appeal
Relief refused
#Immediate release of the appellant
The appeal succeeded only to the limited extent of securing a rehearing; the appellant is to remain in custody in the meantime
Costs
No costs order was 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.
With utmost respect, the subsequent direction was an error of law.
It follows therefore that the proceedings presided over by the Commissioner of Assize, Beham are a nullity in law.
On the hearing date, the appellant was absent and unrepresented. That is an incurable irregularity.
For the reasons already stated we set aside the judgment and orders of the High Court and we order that the appeal be herd with dispatch by a bench of two judges other than the two who have dealt with the matter.
The appellant shall remain in custody until his appeal is heard and determined.
Issues in the judgment
#The name of the Commissioner of Assize is inconsistently spelled within the judgment ('Behan', 'Behand' and 'Beham'), and the case number of the appeal is not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clay Godwin Wambulwa v Republic [1989] KECA 17 (KLR)", Case Analysis (1989). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/17/eng@1989-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.