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Court of AppealDismissedCriminal Application 2 of 2012· [2013] KECA 286 (KLR)

Isaac Kamau Irungu v Republic [2013] KECA 286 (KLR)

Court of Appeal
24 May 2013
WKW. KaranjaPKP.O. KiageAMA. Murgor
1,396 words in judgment
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The bottom line

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The Court of Appeal refused to certify a death-row appeal to the Supreme Court, clarifying that constitutional appeals of right need no leave and old cases stay closed.

What this practically means

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Executive summary

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The applicant, convicted of robbery with violence and sentenced to death, had his first and second appeals dismissed by the High Court and the Court of Appeal (Criminal Appeal No. 112 of 2001, judgment of 27 July 2001). He filed a motion at the Court of Appeal in Nairobi styled an application for leave/certification to appeal to the Supreme Court under various constitutional provisions, but whose only substantive prayers were urgency and an extension of fourteen days to file a Notice of Appeal in the Supreme Court. The court, of its own motion, examined its jurisdiction. It held that certification under Article 163(4)(b) requires demonstration of a matter of general public importance, which the applicant never attempted, so certification could not issue. It further held, following the Supreme Court's decisions in Lawrence Nduttu and Samuel K. Macharia, that an appeal as of right under Article 163(4)(a) requires no leave, certification or any input from the Court of Appeal. On the extension-of-time prayer, the court held that Rule 4 of the Court of Appeal Rules is of no assistance because the timelines for filing a Notice of Appeal in the Supreme Court are governed by the Supreme Court Act and Rules made thereunder, not the Court of Appeal Rules; the applicant should have addressed the Supreme Court registry. Finally, the court expressed the preliminary view that Article 163(4) jurisdiction is forward-looking and does not apply to matters finalised before the Constitution of 2010, invoking S.K. Macharia and Greenfield Investment to stress finality and closure in litigation. The application was dismissed.

Key legal issues

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01

Whether certification was available under Article 163(4)(b)

Holding

Certification refused because the applicant showed no matter of general public importance

Reasoning

The applicant styled the application one for certification but only prayed for extension of time. Even treating it as a certification application, neither the application, the supporting affidavit, nor counsel's submissions attempted to demonstrate that the constitutional challenges to the death sentence raised a matter of general public importance, which is the threshold requirement of Article 163(4)(b).

p. 2
02

Whether leave is required for an appeal under Article 163(4)(a)

Holding

No; such appeals lie as of right with no leave or certification

Reasoning

The court held Article 163(4)(a) is clear beyond peradventure: appeals involving interpretation or application of the Constitution go to the Supreme Court as of right. This was restated by the Supreme Court in Lawrence Nduttu and adopted in Samuel K. Macharia, and the court declared 'It is the law.'

p. 2
03

Whether Rule 4 Court of Appeal Rules empowers extension of time for a Supreme Court Notice of Appeal

Holding

It does not; the proper framework is the Supreme Court Act and Rules

Reasoning

Rule 4 extends time limited by the Court of Appeal Rules, but the timelines for filing a Notice of Appeal in the Supreme Court are not provided for by those Rules. The applicant should have resorted to the Supreme Court Act and Rules, including regarding the registry's refusal to accept his application.

p. 3
04

Retrospectivity of Article 163(4) jurisdiction

Holding

The jurisdiction is forward-looking and does not reach judgments finalised before the 2010 Constitution

Reasoning

The judgment appealed from was rendered in 2001, before the Constitution. Relying on S.K. Macharia and its own decision in Greenfield Investment, the court affirmed that allowing appeals over matters finalised pre-2010 would disturb finality and private legal relations; Article 163(4) is prospective only.

p. 3

Legal principles established

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  • An appeal to the Supreme Court as of right under Article 163(4)(a) requires no leave, certification or any input from the Court of Appeal
  • Certification under Article 163(4)(b) requires demonstration of a matter of general public importance
  • The Court of Appeal cannot extend time for filing a Notice of Appeal in the Supreme Court, as that is governed by the Supreme Court Act and its Rules
  • Article 163(4) jurisdiction is not retrospective and does not extend to matters finalised before the Constitution of 2010

Court orders

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  1. 1.The application dated 20th March 2012 is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 22(3)(d)
  • Constitution of Kenya, 2010Article 22(4)
  • Constitution of Kenya, 2010Article 25(a)
  • Constitution of Kenya, 2010Article 262
  • Constitution of Kenya, 2010Sixth Schedule, clause 6
  • Supreme Court ActSection 15(2)
  • Appellate Jurisdiction ActSections 3(2), 3A, 3B
  • Court of Appeal Rules, 2010Rule 4
  • Supreme Court RulesRule 53

Cases cited (4)

  • LAWRENCE NDUTTU & 6000 OTHERS Vs. KENYA BREWERIES LTD AND J. HARRISON KINYANJUI & CO. ADVOCATES
    SC Petition No. 3 of 2012
  • SAMUEL K. MACHARIA Vs. KENYA COMMERCIAL BANK LTD & 2 OTHERS
    Sup. Ct. Appl. 2 of 2011, [2012] eKLR
  • GREENFIELD INVESTMENT LTD Vs. BABER ALIBHAI MAWJI
    Civ. Appl 5 of 2005
  • BAIBA DHIDHA MJIDHO Vs. VANLEER (EA) LTD (GRIEF (K) LTD) Vs. THE BUSINESS OF BRIEF BROS CORPORATION
    Civ. Appl. 8 of 2008
On appeal from
Court of Appeal, Mombasa
C.R.A No. 112/2001
Jurisdiction invoked
Articles 163(4)(a) and 163(4)(b) of the Constitution; Rule 4 of the Court of Appeal Rules, 2010 (extension of time)

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, "Isaac Kamau Irungu v Republic [2013] KECA 286 (KLR)", Case Analysis (2013). Criminal Application 2 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/286/eng@2013-05-24

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