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Court of AppealPartially AllowedCriminal Appeal Nos. 370 & 372 of 2010· [2013] KECA 144 (KLR)

1. Ferdinand Indangasi Musee 2. Aggrey Rasto Wandei v Republic

Court of Appeal of Kenya
15 November 2013
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
1,489 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a High Court criminal judgment signed by only one of two Judges is a nullity, ordering the appeal re-heard before a fresh bench.

What this practically means

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Executive summary

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The appellants were convicted by the Chief Magistrate's Court at Mombasa of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death; the first appellant was also convicted of possessing an imitation firearm, sentence withheld. Their first appeals to the High Court at Mombasa (Ibrahim and Odero, JJ.) were dismissed on 29th September 2010. On second appeal, counsel for the appellants raised, as a preliminary matter, that the High Court judgment had been signed by only one of the two Judges who heard the appeal, rendering it a nullity; the respondent conceded the appeal on that ground and joined in seeking a re-hearing. The Court of Appeal, per a single judgment of the court (Okwengu, Asike-Makhandia and Sichale, JJ.A.), held that under section 169(1) of the Criminal Procedure Code a judgment must be signed by the Judges pronouncing it, and that a judgment crafted by two Judges but signed by one is a nullity not curable by section 382 of the Code or Article 159 of the Constitution, following Lokwachama v Republic and Samson Matende v Republic. The court allowed the appeal, quashed the conviction and set aside the sentence, and directed under section 361(2) that the first appeal be re-heard by a differently constituted bench of two Judges. Applying Muiruri v Republic, it found the ends of justice demanded a re-hearing since the omission was the court's own making. The court expressed concern at recurring unsigned judgments from the Mombasa High Court and urged the Resident Judge and Principal Judge to institute remedial measures. The appellants were ordered to remain in custody pending production before the High Court within fourteen days for fixing of a re-hearing date.

Key legal issues

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01

Validity of a High Court judgment in a criminal appeal signed by only one of two Judges

Holding

Such a judgment is a nullity; the defect cannot be cured by section 382 of the Criminal Procedure Code or Article 159 of the Constitution, and the Court of Appeal cannot consider its merits.

Reasoning

Section 169(1) of the Criminal Procedure Code requires a judgment to be dated and signed by the presiding officer at the time of pronouncing it. Following Lokwachama v Republic and Samson Matende v Republic, the court held that where the second Judge's signature is missing there is no valid judgment to consider, and the omission is incurable notwithstanding the overriding-objective provisions invoked.

p. 2
02

Whether a re-hearing of the first appeal should be ordered

Holding

Yes; the principles governing retrials apply to re-hearing of appeals, and since the defect was entirely of the court's own making and would cause no injustice to the appellants, a re-hearing before a different bench was directed.

Reasoning

Applying Muiruri v Republic, the court held that a re-hearing is ordered only where the interest of justice requires it and it is unlikely to cause injustice to the appellant. The error was the court's own, not attributable to the prosecution or the appellants, and the appellants and respondent both consented to a re-hearing before a differently constituted bench under section 361(2) of the Criminal Procedure Code.

p. 3

Legal principles established

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  • A judgment of the High Court in a criminal appeal heard by two Judges must be signed by both Judges; a judgment signed by only one Judge is a nullity and the Court of Appeal is precluded from considering its merits.
  • Where a conviction is quashed for an unsigned judgment caused by an error of the court's own making, the interest of justice may require a re-hearing of the first appeal before a differently constituted bench.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed and the sentence imposed is set aside
  3. 3.Pursuant to section 361(2) of the Criminal Procedure Code, the appeal be re-heard in the superior court before a different bench of two Judges other than those who presided over the initial appeal
  4. 4.The appellants shall remain in prison custody until they are produced before the High Court within fourteen (14) days from the date of the judgment so that a re-hearing date for their appeal is fixed
  5. 5.This judgment to be brought to the attention of the Principal Judge of the High Court and the Resident Judge, High Court of Kenya at Mombasa for their appropriate intervention
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A. Nos. 249 & 250 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under section 361 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "1. Ferdinand Indangasi Musee 2. Aggrey Rasto Wandei v Republic", Case Analysis (2013). Criminal Appeal Nos. 370 & 372 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/144/eng@2013-11-15

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