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Court of AppealAllowedCriminal Appeal No. 162 of 2003· [2004] KECA 108 (KLR)

kihiko v Republic [2004] KECA 108 (KLR)

Court of Appeal
21 September 2004
ROR. S. C. OmoloEOE. O. O'KubasuEGE. M. Githinji
290 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a High Court criminal appeal heard by one judge, without the Chief Justice's written authority, is invalid and its conviction cannot stand.

What this practically means

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Executive summary

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Peter Ndungu Kihiko was convicted by a trial magistrate of robbery contrary to section 296(1) of the Penal Code. On first appeal, the High Court of Kenya at Nakuru, by a judgment dated 4 July 2003 in H.C. Cr. A. No. 251 of 2000, Muga Apondi J revised the conviction to robbery with violence contrary to section 296(2) of the Penal Code and imposed the death sentence. The appellant appealed to the Court of Appeal at Nakuru. Before the Court of Appeal, counsel for the appellant drew attention to section 359(1) of the Criminal Procedure Code, which refers to appeals being heard by two judges. The Court noted the settled practice of the High Court that appeals are heard by two judges unless the Chief Justice has issued a written authority directing that an appeal be heard by one judge. As no such written authority existed, the Court was satisfied that Muga Apondi J erred in hearing and determining the first appeal while sitting as a single judge. In a single joint judgment of the court delivered on 21 September 2004, the Court allowed the appeal, set aside the conviction as revised and the sentence of death, and directed that the appeal be re-heard by a bench of two judges of the High Court. Pending the re-hearing, the appellant was ordered to continue serving the sentence imposed by the trial magistrate. No costs order was made and no authorities were cited. The judgment binds lower courts to observe the two-judge composition rule for criminal appeals in the absence of the Chief Justice's written authorisation.

Key legal issues

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01

Whether a High Court first appeal may properly be heard by a single judge without the Chief Justice's written authority.

Holding

No. Section 359(1) of the Criminal Procedure Code refers to appeals being heard by two judges, and the settled practice of the High Court is two-judge hearings absent written authority from the Chief Justice. Hearing the appeal singly was therefore an error.

Reasoning

Counsel for the appellant drew the Court's attention to section 359(1) of the Criminal Procedure Code, which refers to appeals by two judges. The Court observed that the settled practice of the High Court is that appeals are heard by two judges unless the Chief Justice has given written authority for a single-judge hearing. As no such written authority existed, the judge's decision to proceed with the first appeal while sitting alone was an error, and the resulting conviction as revised and the death sentence could not stand.

p. 2
02

The appropriate remedy where a first appeal has been heard by a single judge without the requisite written authority.

Holding

The appeal is allowed, the conviction and sentence are set aside, and the appeal is re-heard by a bench of two judges; meanwhile the appellant continues to serve the trial magistrate's sentence.

Reasoning

Because the single-judge hearing offended the two-judge requirement of section 359(1) of the Criminal Procedure Code, the outcome of the defective hearing could not stand. The Court allowed the appeal and set aside both the conviction, which had been revised to robbery with violence contrary to section 296(2) of the Penal Code, and the death sentence. Rather than determine the merits itself, it directed a re-hearing before a properly constituted bench of two judges, preserving the trial magistrate's sentence in the interim.

p. 2

Legal principles established

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  • Criminal appeals in the High Court must be heard by two judges unless the Chief Justice has issued a written authority directing that the appeal be heard by a single judge.
  • A conviction and sentence pronounced on an appeal heard by a single judge without the Chief Justice's written authority cannot stand; they must be set aside and the appeal re-heard by a bench of two judges.

Court orders

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  1. 1.Appeal allowed.
  2. 2.The conviction and sentence of death imposed on the appellant set aside.
  3. 3.The appeal to be re-heard by a bench of two judges.
  4. 4.Pending the re-hearing, the appellant to continue serving the sentence imposed by the trial magistrate.

Authorities

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Legislation

  • Penal Codesection 296(1)
  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 359(1)
On appeal from
High Court of Kenya at Nakuru
H.C. Cr. A. No. 251 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code; the Court invoked section 359(1) of the Criminal Procedure Code, which refers to appeals being heard by two judges.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "kihiko v Republic [2004] KECA 108 (KLR)", Case Analysis (2004). Criminal Appeal No. 162 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/108/eng@2004-09-21

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