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Court of AppealOtherCriminal Appeal (Appli) 51 of 2004· [2007] KECA 268 (KLR)

1. Elizabeth Gitiri Gachanja 2. David Karugu Mwangi 3. Wilson Thirimbi Mwangi 4. Rose Njoki Muruatetu 5. Anna Ngonyo 6. Stephen Kagia Alias Blackie 7. Francis Karioko Muruatetu & 8. Stephen Wambua Kamau v Republic

Court of Appeal of Kenya
6 July 2007
2,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that an unsigned-judgment challenge belongs in the appeal itself, not a preliminary objection based on disputed facts.

What this practically means

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Executive summary

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At the hearing of an appeal by eight persons convicted and sentenced to death by the High Court (Mbogholi Msagha J) in H.C. Cr. Case No. 40 of 2000, the seventh appellant raised a preliminary objection contending that the entire trial was a nullity because the judgment read in court, as required by section 169(1) and (2) of the Criminal Procedure Code, was not signed, and sought a mistrial and retrial de novo or release. Counsel for the other appellants supported the objection; the State opposed, arguing that a preliminary objection cannot rest on disputed facts and that the validity of the judgment was a matter for the full hearing. The Court of Appeal, in a unanimous ruling, declined to sustain the objection. It restated that an unsigned judgment would vitiate a trial where non-compliance with section 169 is clear and undisputed, but held that here the facts were disputed: there was a handwritten unsigned judgment, an original typed signed judgment, and conflicting pagination. Applying Mukisa Biscuits, it held a preliminary objection cannot be raised where facts must be ascertained. It further doubted whether an appellant can object to the very judgment appealed from, holding the proper course was to plead non-compliance as a ground of appeal to be determined when the first appellate court evaluates the whole record. The objection was rejected, the appeal was directed to proceed to full hearing, and directions were given on re-pagination, legible copies, a complete English translation, and a supplementary memorandum for the first appellant.

Key legal issues

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01

Whether a preliminary objection lies in a criminal appeal on disputed facts

Holding

It does not; a preliminary objection raises a pure point of law on assumed facts, and where facts are in dispute it is untenable

Reasoning

The court adopted the classic statement in Mukisa Biscuits on the nature of preliminary objections, agreeing with State Counsel that where parties must invite the court to peruse the record and draw inferences, the point is factual, not a pure point of law. In a first appeal the court must itself revisit, analyse and evaluate the evidence afresh, an exercise that cannot occur piecemeal at an interlocutory stage.

p. 4
02

Whether an appellant can file a preliminary objection against the very judgment he is appealing

Holding

No; the logic is incoherent, since if there is no judgment there is no appeal

Reasoning

The court doubted whether a preliminary objection can be raised by an appellant in his own criminal appeal, noting it was referred to no authority on the point and expressed scepticism about the notion of objecting to the judgment one is appealing against.

p. 3
03

Stage at which non-compliance with section 169 of the Criminal Procedure Code should be determined

Holding

At the full hearing, when the first appellate court considers the entire appeal and record

Reasoning

The court held that whether the trial court complied with section 169 is to be investigated when the appellate court, as a first appellate court, analyses the evidence and the whole record afresh. The ground must be set out in the memorandum of appeal; notably, most appellants had already raised section 169 non-compliance as a ground of appeal.

p. 3

Legal principles established

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  • A preliminary objection must rest on undisputed facts; it cannot be raised where facts must be ascertained or where judicial discretion is involved
  • Compliance with section 169(1) and (2) of the Criminal Procedure Code is mandatory; an unsigned judgment vitiates the trial where the non-compliance is clear and undisputed
  • The proper route for an appellant alleging an unsigned judgment is to plead it as a ground of appeal, to be determined when the first appellate court evaluates the entire record, not by way of preliminary objection

Court orders

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  1. 1.The preliminary objection is rejected
  2. 2.The full appeal to proceed to hearing
  3. 3.Record of appeal to be re-paginated in running order from volume 1 to volume 3
  4. 4.Legible copies of illegible pages 59-62 in volume 3 of the record to be supplied
  5. 5.A complete English translation of the extra-judicial statement to be filed
  6. 6.The first appellant allowed to file a supplementary memorandum of appeal raising the unsigned-judgment ground
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. Case No. 40 of 2000
Jurisdiction invoked
First appellate criminal appeal (appellate jurisdiction over High Court criminal trial judgment; rule 61 of the Court's Rules referenced)

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, "1. Elizabeth Gitiri Gachanja 2. David Karugu Mwangi 3. Wilson Thirimbi Mwangi 4. Rose Njoki Muruatetu 5. Anna Ngonyo 6. Stephen Kagia Alias Blackie 7. Francis Karioko Muruatetu & 8. Stephen Wambua Kamau v Republic", Case Analysis (2007). Criminal Appeal (Appli) 51 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/268/eng@2007-07-06

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