Kamlesh Mansuklal Damji Pattni v Republic [1995] KECA 127 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the subject matter of the order under revision (bail conditions) is itself appealable to the Court of Appeal
Key legal issues
#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
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
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.
Whether the Chief Magistrate had jurisdiction to vary bail conditions imposed by the High Court
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
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.
Whether the ex-parte stay order made by Patel, J in the absence of the appellant was proper
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
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.
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.The preliminary objection raised by the Republic is upheld
- 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.
- 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
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.
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
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.
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.
ex-parte orders have very little room in the criminal process, unless of course, they are made for the benefit of the person accused.
Issues in the judgment
#The judgment repeatedly misprints the statutory reference to section 361(7) as 'section 361 97)' in two places
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.