Josphat Kigorwe Mururu v Republic [2008] KECA 78 (KLR)

Court of Appeal of Kenya

31 October 2008

ROR.S.C. Omolo EGE.M. Githinji JOJ.W. Onyango Otieno

538 words in judgment

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The bottom line

Kenya's Court of Appeal threw out a criminal appeal because the High Court's judgment was undated and unsigned, confirming only a signed, dated judgment counts.

What this practically means

Executive summary

The appellant was convicted by the Chief Magistrate's court at Meru on three counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death on each count. On first appeal, the High Court (Juma & Mulwa, JJ) heard the appeal and purported to deliver a judgment, but the document appearing in the record was undated and unsigned. The appellant then lodged a second appeal to the Court of Appeal at Nyeri. The Court held that although section 169(1) of the Criminal Procedure Code deals expressly with judgments in original jurisdiction, the same requirement of dating and signing applies to appellate judgments, so that the author takes responsibility for the judgment. The undated, unsigned document could not be confirmed as the product of the two judges, and was therefore not a valid judgment. Since the Court of Appeal can only hear and determine appeals from a valid judgment or ruling of a superior court, no valid appeal lay before it. The Court ordered that the appellant's first appeal be heard de novo by a different bench of two judges of the High Court, which must render a dated and signed judgment, with liberty to return to the Court of Appeal thereafter if necessary. The Court also reiterated, obiter, its settled view that it is wrong to impose death sentences on multiple counts. The judgment was delivered by a unanimous bench of Omolo, Githinji and Onyango Otieno, JJA. No costs order was made.

Key legal issues

Whether an undated and unsigned document purporting to be a High Court judgment constitutes a valid judgment for purposes of a further appeal

Holding

It does not. A judgment must be dated and signed so that its author can take responsibility for it; absent that, there is no valid judgment and hence no valid appeal to the Court of Appeal.

Reasoning

Section 169(1) of the Criminal Procedure Code requires a judgment to be dated and signed by the presiding officer in open court. Although that provision speaks to original jurisdiction, the Court saw no reason to distinguish judgments on appeal; in both cases the judgment must be dated and signed. Since the document at pages 61 to 63 was undated and unsigned, the Court could not confirm it was written by the two High Court judges, and no valid appeal lay to it.

p. 1

Whether multiple death sentences may be imposed on one accused convicted on several counts

Holding

It is wrong to sentence a person to death on more than one count, as a person cannot be hanged more than once.

Reasoning

The appellant was sentenced to death on each of three counts of robbery with violence. The Court, citing its repeated pronouncements, reiterated the settled practice that only one death sentence should be passed where multiple counts attract the death penalty, since the sentence can only be executed once. This is an obiter observation recorded in passing; the Court's operative orders concerned the nullity of the High Court judgment.

p. 1

Legal principles established

A judgment of the High Court, whether rendered in original or appellate jurisdiction, must be dated and signed by the presiding officer; an undated and unsigned document is not a valid judgment and cannot found an appeal to the Court of Appeal.
The Court of Appeal can only hear and determine an appeal from a valid judgment or ruling of a superior court.
It is wrong to impose a death sentence on more than one count in the same trial.

Court orders

1.The appellant's appeal to the High Court shall be heard de novo by a different bench of two Judges
2.A valid judgment, i.e. one that is dated and signed, be rendered by that court
3.Liberty for the appellant to return to the Court of Appeal thereafter if there be necessity

Authorities

Legislation

Penal Codesection 296(2)
Criminal Procedure Codesection 169(1)
Criminal Procedure Codesection 210

On appeal from: High Court of Kenya at Meru; H.C. Cr. A. No. 301 of 2001
Jurisdiction invoked: Appellate jurisdiction of the Court of Appeal over appeals from the High Court (the Court can only hear appeals from a valid judgment or ruling of a superior court)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Josphat Kigorwe Mururu v Republic [2008] KECA 78 (KLR)", Case Analysis (2008). Criminal Appeal 97 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/78/eng@2008-10-31

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