Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCriminal Appeal (Nairobi)

Kamlesh Mansuklal Damji Pattni v Republic [1995] KECA 127 (KLR)

Court of Appeal of Kenya
6 November 1995
2,330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out Pattni's bail appeal, ruling that a right of appeal must be expressly given by statute and cannot be implied.

What this practically means

#

Executive summary

#
The appellant, facing numerous criminal charges before the Chief Magistrate of Nairobi, had bail conditions imposed by two High Court judges requiring him to deposit his passport and remain within the court's jurisdiction. In August 1995 the Chief Magistrate temporarily lifted those conditions. The Republic, having no right of appeal against such an order, wrote to the Deputy Registrar invoking the High Court's revisionary jurisdiction under section 362 of the Criminal Procedure Code. Patel, J made an ex-parte stay order without hearing the appellant, then, after hearing both applications, reversed the Chief Magistrate's orders, holding that the Chief Magistrate had no jurisdiction to vary bail terms imposed by the High Court. The appellant appealed to the Court of Appeal relying on section 361(7) of the Code, which deems High Court revisionary orders to be decisions in its appellate jurisdiction. The Republic raised a preliminary objection on jurisdiction. The Court of Appeal held that a right of appeal must be expressly conferred by statute and cannot be implied; section 361(7) does not expressly make revisionary orders appealable, and the subject matter - bail conditions - is itself not appealable to the Court of Appeal, which cannot grant bail to persons awaiting trial. The court also observed that the ex-parte stay order ought not to have been made in the appellant's absence, since section 364(2) protects an accused from prejudicial orders made without a hearing whether final or interlocutory. It doubted, without deciding, the High Court's proposition that only the High Court could vary its own bail terms. The preliminary objection was upheld and the appeal struck out as incompetent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction under section 361(7) of the Criminal Procedure Code to hear an appeal from an order made by the High Court in the exercise of its revisionary jurisdiction
  2. 2.Whether the subject matter of the order under revision (bail conditions) is itself appealable to the Court of Appeal

Key legal issues

#
01

Whether section 361(7) of the Criminal Procedure Code confers a right of second appeal against orders made by the High Court in its revisionary jurisdiction

Holding

Section 361(7) merely deems revisionary orders to be orders made in the appellate jurisdiction of the High Court; it does not expressly make all such orders appealable, and an appeal lies only if the subject matter is itself appealable

Reasoning

The court accepted that the deeming provision makes a revisionary order count as an appellate decision for purposes of section 361, but held that this does not of itself create a right of appeal. The right of appeal must be express. The subject matter here was bail, which the Court of Appeal cannot entertain for persons awaiting trial. Permitting such appeals would enable accused persons to obtain bail jurisdiction indirectly through revision, a result the section could not have intended.

p. 3
02

Whether the Chief Magistrate had jurisdiction to vary bail conditions imposed by the High Court

Holding

The High Court judge held the Chief Magistrate had no jurisdiction to vary bail terms imposed by the High Court, but the Court of Appeal doubted that proposition and declined to determine it conclusively given its want of jurisdiction

Reasoning

Patel, J had gone so far as to hold that only the High Court could vary bail terms it had imposed. The Court of Appeal stated it very much doubted the correctness of that proposition but, having concluded that the appeal before it was incompetent, it was unnecessary to resolve the issue. That question therefore remains undecided in this judgment.

p. 2
03

Whether the ex-parte stay order made by Patel, J in the absence of the appellant was proper

Holding

The ex-parte stay order ought not to have been made in the appellant's absence, since section 364(2) prohibits any order to the prejudice of an accused who has not been heard, whether final or interlocutory

Reasoning

Although section 365 denies a party a right to be heard on revision, section 364(2) protects an accused from prejudicial orders made without a hearing and draws no distinction between final and interim orders. The court emphasized that ex-parte orders have little room in criminal process save where they benefit the accused, such as arrest warrants.

p. 2

Legal principles established

#
  • A right of appeal to the Court of Appeal must be expressly conferred by statute and cannot be implied or inferred
  • An appeal under section 361(7) of the Criminal Procedure Code lies only where the subject matter of the order made on revision is itself appealable
  • The Court of Appeal has no jurisdiction to grant bail to a person awaiting trial in a subordinate court or the High Court; it can only grant bail to persons whose appeals are pending before it
  • A letter to the Deputy Registrar asking that a file be called for is a valid method of invoking the High Court's revisionary jurisdiction under section 362 of the Criminal Procedure Code
  • Ex-parte orders have very little room in the criminal process unless made for the benefit of the accused, and no order under section 364(2) may be made to the prejudice of an accused who has not had an opportunity of being heard, whether the order is final or interlocutory
  • A court without jurisdiction must down its tools

Court orders

#
  1. 1.The preliminary objection raised by the Republic is upheld
  2. 2.The appeal is struck out as incompetent and filed without any legal basis

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Appellant invoked section 361(7) of the Criminal Procedure Code; the Court found no express statutory authorization and held it had no jurisdiction

Relief refused

#

The appellant's appeal against the High Court's reversal of the Chief Magistrate's orders on bail conditions

No express statutory provision conferring a right of appeal to the Court of Appeal; the subject matter (bail conditions) is not appealable

p. 4

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.

That right cannot be implied and cannot be inferred. It must be expressly given by statute.
p. 3Requirement of express statutory conferral of appellate jurisdiction
before one can make use of that section, one must be able to show to the Court that one’s subject matter is itself appealable to Court
p. 4Section 361(7) Criminal Procedure Code - appealability of subject matter
We are satisfied there is no statutory authorization for the appellant’s appeal to us and we accordingly uphold the preliminary objection raised by Mr. Chunga.
p. 4Upholding the preliminary objection on jurisdiction
The appeal before us is incompetent as having been filed without any legal basis and we accordingly order that it be and is hereby struck out. Those shall be the orders of this Court.
p. 4Final orders - striking out the appeal
ex-parte orders have very little room in the criminal process, unless of course, they are made for the benefit of the person accused.
p. 2Ex-parte orders in criminal proceedings

Issues in the judgment

#
minor

The judgment repeatedly misprints the statutory reference to section 361(7) as 'section 361 97)' in two places

minor

The judgment contains typographical errors such as 'I file' for 'a file' and 'due' for 'unduly'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamlesh Mansuklal Damji Pattni v Republic [1995] KECA 127 (KLR)", Case Analysis (1995). Criminal Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/127/eng@1995-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.