Mark Oweggi v Republic [1993] KECA 71 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an advocate's bid to pause his criminal prosecution, ruling that a clash between two ordinary laws is not a constitutional question.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether section 67(1) of the Constitution was properly invoked for interpretation of the Constitution in the subordinate court proceedings
- 2.Whether there is a conflict between section 80 of the Advocates Act and section 283 of the Penal Code requiring constitutional interpretation
- 3.Whether the intended appeal is arguable
Key legal issues
#Invocation of section 67(1) of the Constitution
The provision can only be invoked where a question as to the interpretation of the Constitution arises in subordinate court proceedings, which was not the case here
The applicant sought a Constitutional Court to interpret the Advocates Act vis-à-vis section 283 of the Penal Code. The Court held that no question of constitutional interpretation arose; the dispute concerned a claimed conflict between two statutes. Since the threshold requirement of a constitutional question in the subordinate court was absent, the provision could not be invoked and the intended appeal was not arguable.
Conflict between the Advocates Act and the Penal Code
An alleged conflict between two Acts of Parliament does not raise a constitutional interpretation issue
The applicant argued that section 80 of the Advocates Act, requiring a report from the Disciplinary Committee before prosecution, conflicted with section 283 of the Penal Code. The Court held this statutory conflict was not a constitutional matter and did not warrant reference to a Constitutional Court.
Attorney-General's prosecutorial powers
The Attorney-General's powers in criminal prosecutions are unfettered under section 26(3) of the Constitution; a statute purporting to derogate from them would be of no effect
The Court noted the applicant's argument that prosecution of an advocate required prior compliance with section 80 of the Advocates Act. It observed that the constitutional grant of power to the Attorney-General is unfettered, and if a statute purported to derogate from that constitutional provision, the constitutional position would prevail.
Legal principles established
#- Section 67(1) of the Constitution can only be invoked where a question as to the interpretation of the Constitution itself arises in proceedings in a subordinate court
- A conflict between two Acts of Parliament is not a matter requiring interpretation of the Constitution
- Section 26(3)(a), (b) and (c) of the Constitution confers unfettered powers on the Attorney-General in matters relating to criminal prosecutions
Court orders
#- 1.The application was dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 67(1) of the Constitution (invoked by the applicant); the application concerned an intended appeal to the Court of Appeal
Relief refused
#Leave/permission to pursue the intended appeal and the constitutional reference
The Court was not satisfied that the intended appeal was arguable; no question as to the interpretation of the Constitution arose in the subordinate court
Costs
No costs order 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.
we are not satisfied that the applicant’s intended appeal is an arguable one and that being our view of the matter we order the application to be dismissed.
Section 67(1) of the Constitution can only be invoked where any question as to the interpretation of the Constitution itself arises in any proceedings in any subordinate court.
A conflict between two Acts of Parliament is not a matter requiring the interpretation of the Constitution.
section 26 (3) (a), (b) and (c) of the Constitution which gives the Attorney-General unfettered powers in matters relating to criminal prosecutions
Issues in the judgment
#The case number and neutral citation are not stated in the judgment text supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Oweggi v Republic [1993] KECA 71 (KLR)", Case Analysis (1993). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/71/eng@1993-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.