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Court of AppealPartially AllowedCriminal Appeal 102 of 2006

JOSEPH KINYANJUI WAINAINA v REPUBLIC [2007] KECA 181 (KLR)

Court of Appeal of Kenya
16 March 2007
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal invalidated a criminal appeal judgment because it was signed by a judge who never heard the appeal.

What this practically means

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Executive summary

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The appellant was tried in the Chief Magistrate's Court at Makadara for robbery with violence contrary to section 296(2) of the Penal Code, convicted after a full trial and sentenced to death. His first appeal to the High Court at Nairobi (Criminal Appeal No. 697 of 2001) was dismissed on 10th May 2005. The record before the Court of Appeal showed that the appeal had been fully heard on 7th April 2005 by Lesiit and Mutungi JJ, who reserved judgment for delivery on 10th May 2005, yet the judgment delivered on that date was signed by O.K. Mutungi J and F.A. Ochieng J — a judge who never heard the appeal — with no explanation on the record why Lady Justice Lesiit did not sign it. The appellant's fifth ground of appeal attacked that irregularity; counsel for the State conceded the appeal on the same ground but sought either a hearing de novo or a fresh judgment by the judges who heard the appeal. The Court of Appeal held that section 169(1) of the Criminal Procedure Code, a provision of general application relating to all criminal matters under Part IV of the Code, directs what the judge or judges who hear an appeal in the superior court must do in preparing and signing judgment. It found the judgment had not been signed by one of the judges who heard the appeal and had been signed by a judge who never heard it; this was irregular and rendered the superior court's judgment invalid. The Court declined to address the other grounds of appeal, reserving them for the fresh hearing. The appeal was allowed, the High Court judgment of 10th May 2005 was set aside, and the first appeal was remitted for hearing de novo before a bench excluding Lesiit, Ochieng and Mutungi JJ. No order as to costs was made.

Questions the Court framed

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

  1. 1.Whether the judgment of the High Court in the first appeal was rendered invalid by being signed by a judge (Ochieng J) who never heard the appeal, and not being signed by one of the judges (Lesiit J) who heard the appeal
  2. 2.Whether section 169(1) of the Criminal Procedure Code, as a provision of general application under Part IV of the Code, governs the preparation and signature of judgments in appeals heard in the superior court
  3. 3.What remedy should follow from that irregularity, and whether the other grounds of appeal against the conviction and sentence should be addressed by this Court

Key legal issues

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01

Whether a judgment in a criminal appeal is valid where it is signed by a judge who did not hear the appeal and not signed by one of the judges who did

Holding

The judgment is irregular and rendered invalid. The appellant could not be faulted in complaining that one of the judges who dismissed his appeal never heard it and had no basis for dismissing it, and that a judge who heard it did not participate in preparing the judgment.

Reasoning

Section 169(1) of the Criminal Procedure Code requires every judgment to be written by or under the direction of the presiding officer and to be dated and signed in open court at the time of pronouncing it. As a provision of general application to all criminal matters under Part IV of the Code, it directs what the judge or judges who hear an appeal in the superior court must do. The record disclosed no explanation why Lesiit J, who fully heard the appeal with Mutungi J on 7th April 2005 and reserved judgment, did not sign the judgment delivered on 10th May 2005, nor why Ochieng J, who never heard the appeal, signed it. Both limbs of the complaint were sound and not frivolous, and the defect went to the validity of the judgment rather than the merits of the conviction.

p. 3
02

Whether an accused person has a legitimate complaint where a judge who dismissed his appeal never heard the appeal

Holding

Yes. The complaint that a judge who dismissed the appeal never heard it, and that a judge who heard it apparently did not participate in preparing the judgment, is sound and not frivolous.

Reasoning

The Court examined the record of the proceedings below and found that the appeal was first listed before Ochieng J on 20th January 2005 but was adjourned; it was then fully heard on 7th April 2005 by Lesiit and Mutungi JJ, who reserved judgment to 10th May 2005. The judgment delivered on that date was signed by O.K. Mutungi J and F.A. Ochieng J. Since Ochieng J never heard the appeal, he had no basis for dismissing it, and the appellant could not be faulted in complaining about both the participation of a judge who did not hear the appeal and the absence of a judge who did.

p. 2
03

What remedy follows where the judgment in a first appeal is invalid for having been signed by a judge who did not hear it, and whether the other grounds of appeal should be determined

Holding

The appeal is allowed, the invalid judgment is set aside, and the first appeal is remitted for hearing de novo before a bench excluding the three judges involved; the remaining grounds are left for determination at the fresh hearing.

Reasoning

Because the superior court's judgment was rendered invalid by the irregularity in its preparation and signature, it could not stand and had to be set aside. The Court expressly declined to discuss the other matters raised on the entire case, reasoning that they would be addressed at the hearing of the appeal which would proceed de novo before the superior court. To safeguard the integrity of the fresh hearing, the remittal excluded Lesiit, Ochieng and Mutungi JJ — the judges connected with the invalid judgment — from the bench that would rehear the appeal.

p. 3

Legal principles established

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  • A judgment in a criminal appeal heard in the superior court must be signed by the judge or judges who heard the appeal; a judgment signed by a judge who never heard the appeal, and not signed by one of the judges who heard it, is irregular and invalid and cannot stand
  • Section 169(1) of the Criminal Procedure Code, being a provision of general application to all criminal matters under Part IV of the Code, governs the preparation and signature of judgments delivered in appeals heard by judges of the superior court

Court orders

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  1. 1.This appeal is allowed
  2. 2.The superior court judgment dated 10th May 2005 dismissing the appeal from the subordinate court is set aside
  3. 3.The High Court Criminal Appeal Number 697 of 2001 is remitted to the superior court for hearing de novo before a bench which shall exclude Lesiit, Ochieng and Mutungi, JJ

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. Appeal No. 697 of 2001
Jurisdiction invoked
Not expressly stated in the judgment; the matter is a second appeal in a criminal case from a decision of the High Court, heard as of right by the Court of Appeal

Relief refused

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The State's alternative prayer that the Judges who heard the first appeal be directed to prepare judgment afresh

Although the State conceded the appeal, the Court did not direct a fresh judgment by the judges who heard the appeal; instead it set the judgment aside entirely and remitted the appeal for hearing de novo before a differently constituted bench excluding all three judges connected with the defective judgment

p. 3

Costs

No order as to costs is recorded in the judgment

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.

This appeal is allowed. The superior court judgment dated 10th May 2005 dismissing the appeal from the subordinate court is set aside. The High Court Criminal Appeal Number 697 of 2001 is remitted to the superior court for hearing de novo before a bench which shall exclude Lesiit, Ochieng and Mutungi, JJ. Judgment accordingly.
p. 3Final orders and disposition of the appeal
Whatever reason necessitated what happened in the superior court concerning the preparation of the judgment in the appellant's appeal, that the judgment delivered was not signed by one of the Judges who heard the appeal and was signed by a judge who never heard the appeal was irregular. In our view, the superior court's judgment was rendered invalid.
p. 3Invalidity of a judgment signed by a judge who did not hear the appeal
Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the Court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
p. 2Section 169(1) of the Criminal Procedure Code - statutory requirements for criminal judgments
We think the appellant cannot be faulted when he complains that one of the judges who dismissed his appeal never heard the appeal and had no basis for dismissing the appeal.
p. 2Right to have an appeal determined only by the judges who heard it

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "JOSEPH KINYANJUI WAINAINA v REPUBLIC [2007] KECA 181 (KLR)", Case Analysis (2007). Criminal Appeal 102 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/181/eng@2007-03-16

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