Elizabeth Waithera Mary & another v Republic [2010] KECA 156 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a mid-trial ruling in a criminal case unless there is a conviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal against a ruling on a preliminary point raised during an ongoing murder trial where there is no conviction
- 2.Whether the appellants' pre-trial detention for two months and fifteen days beyond the constitutional period entitles them to automatic acquittal
- 3.Whether the appellants were required to raise the constitutional contravention by way of a petition under section 84(1) of the Constitution
Key legal issues
#Whether an appeal lies to the Court of Appeal against an interlocutory ruling in an ongoing criminal trial
No appeal lies; appeals to the Court of Appeal arise only from convictions under section 379(1) of the Criminal Procedure Code.
The court reasoned that section 379(1) confines appeals to persons convicted by the High Court and sentenced to death, imprisonment exceeding twelve months, or a fine exceeding Kshs.2,000. Since the appellants' trial was still pending and no conviction had been entered, the ruling on the preliminary point was interlocutory and not appealable. The appellants should have awaited the outcome of the trial before appealing.
Whether the alleged constitutional contravention could be pursued without a petition under section 84(1)
The proper procedure was a petition under section 84(1) of the Constitution and the Rules made thereunder, with an appeal lying to the Court of Appeal under section 84(7) after determination.
Although a fundamental-rights contravention was substantively alleged, the appellants did not move the superior court by petition as required by section 84(1) of the Constitution and the Gicheru Rules, but instead raised a preliminary point in the course of the criminal proceedings. The court held that the constitutional procedure not having been followed, no right of appeal to this Court arose under section 84(7).
Legal principles established
#- Appeals to the Court of Appeal in criminal matters arise only from convictions and sentences as prescribed by section 379(1) of the Criminal Procedure Code; interlocutory rulings in an ongoing trial are not appealable.
- The Court of Appeal does not entertain preliminary applications in criminal cases except in very exceptional situations.
- An accused alleging contravention of constitutional rights during trial must either raise the point at the earliest opportunity and await the trial outcome, or move the court by a petition under section 84(1) of the Constitution, from which an appeal lies under section 84(7).
Court orders
#- 1.The appeal is dismissed for want of jurisdiction, no appeal lying to the Court of Appeal in the absence of a conviction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. CR.C. No. 68 of 2004
- Jurisdiction invoked
- Section 379(1) of the Criminal Procedure Code; sections 72(3)(b), 77, 84(1), 84(6) and 84(7) of the Constitution
Relief refused
#Acquittal on the ground of contravention of sections 72(3)(b) and 77 of the Constitution
No appeal lies to the Court of Appeal in the absence of a conviction; the appellants should have raised the preliminary point timeously or moved the court by petition under section 84(1) of the Constitution
Costs
No order as to costs is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore quite clear that, appeals to this Court arise from convictions and since, in the matter before us there is no conviction, no appeal lies to us.
this Court has repeatedly stated that it does not entertain preliminary applications in criminal cases except in very exceptional situations
In the result, no appeal lies to this Court and the same is hereby dismissed. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Waithera Mary & another v Republic [2010] KECA 156 (KLR)", Case Analysis (2010). Criminal Appeal No. 382 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/156/eng@2010-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.