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Court of AppealAllowedCriminal Appeal No. 20 of 1999

Justine Gachoki Ndegwa & another v Republic [2002] KECA 255 (KLR)

Court of Appeal of Kenya
2 August 2002
JGJ.E. GicheruALA.A. LakhaMKM. Ole Keiwua
694 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that the High Court cannot overturn an acquittal through revision — prosecutors must appeal instead, or the acquittal stands.

What this practically means

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Executive summary

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The appellants, with eleven others, were charged in May 1996 before the Senior Resident Magistrate's Court at Kerugoya with the murder of Stanley Kimotho. Committal documents were never produced or served, and on 27 March 1997 the magistrate acquitted all accused under section 202 of the Criminal Procedure Code because the prosecutor could not proceed. The Director of Public Prosecutions applied by letter of 21 May 1997 for revision, and on 25 September 1998 Waweru J, exercising revisional jurisdiction, held the acquittal was a nullity and reversed it. The appellants appealed to the Court of Appeal, contending that section 364(1)(b) of the Criminal Procedure Code expressly excludes orders of acquittal from the High Court's revisional powers, and that section 364(5) barred revision where the party could have appealed but did not. The Court of Appeal, in a unanimous judgment of the whole bench (Gicheru, Lakha and Ole Keiwua, JJ.A.), accepted both submissions, holding that the unambiguous words of section 364(1)(b) denied the High Court jurisdiction to reverse an acquittal and that section 364(5) was a clear bar which the learned judge erred in ignoring. The appeal was allowed and the High Court's revision order of 25 September 1998 was set aside. The judgment binds subordinate courts and the High Court on the limits of revisional jurisdiction over acquittals. No costs order was recorded and no prior authorities were cited.

Questions the Court framed

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

  1. 1.Whether the High Court had jurisdiction under section 364(1)(b) of the Criminal Procedure Code to revise and set aside an order of acquittal of a subordinate court
  2. 2.Whether section 364(5) of the Criminal Procedure Code barred the revision because the Director of Public Prosecutions could have appealed but did not

Key legal issues

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01

Whether the High Court could revise an order of acquittal under section 364(1)(b) of the Criminal Procedure Code

Holding

It could not; the section expressly limits revision to convictions and to orders other than orders of acquittal.

Reasoning

The court examined the unambiguous wording of section 364(1)(b), which permits the High Court to alter or reverse 'any other order than an order of acquittal'. The express exclusion of acquittals left the High Court with no jurisdiction to reverse the magistrate's acquittal under section 202 of the Code, and the judge's contrary conclusion was an error of law.

p. 2
02

Whether section 364(5) of the Criminal Procedure Code barred the revision application

Holding

It did; the DPP could have appealed against the acquittal but instead invoked revision, which the statute forbids.

Reasoning

Section 364(5) provides that where an appeal lies from a finding, sentence or order and no appeal is brought, no revision shall be entertained at the insistence of the party who could have appealed. The DPP applied by letter for revision rather than appealing, so the revisional order contravened this statutory bar and the learned judge erred in failing to give it effect.

p. 2

Legal principles established

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  • The High Court's revisional jurisdiction under section 364(1)(b) of the Criminal Procedure Code does not extend to altering or reversing an order of acquittal of a subordinate court.
  • Where an appeal lies from a finding, sentence or order and no appeal is brought, revision cannot be entertained at the insistence of the party who could have appealed, per section 364(5) of the Criminal Procedure Code.

Court orders

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  1. 1.The Order of the superior court given on 25 September 1998 is set aside

The bench

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

JG
majority
AL
majority
MK
majority
On appeal from
High Court of Kenya at Nairobi
High Court Criminal Revision No. 18 of 1997
Jurisdiction invoked
Appeal against a revision order of the High Court under the Criminal Procedure Code, Cap. 75 (section 364 revisional jurisdiction in issue)

Quotable passages

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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, therefore, compelled to allow the appeal on the ground that the superior court had no jurisdiction to make the order in revision which it did. Accordingly, the Order of the superior court given on 25 September 1998 is set aside.
p. 2Final orders - appeal allowed and revision order set aside
Having carefully considered the provisions of section 364(1)(b) , we are satisfied that Mr. Gathenji's argument is well founded.
p. 2No jurisdiction to revise an acquittal
In our judgment, with respect, this is a clear bar and the learned judge erred in failing to give any effect to it.
p. 2Section 364(5) bar on revision where appeal lay

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Justine Gachoki Ndegwa & another v Republic [2002] KECA 255 (KLR)", Case Analysis (2002). Criminal Appeal No. 20 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/255/eng@2002-08-02

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