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Court of AppealPartially AllowedCriminal Appeal No. 528 of 2010· [2013] KECA 502 (KLR)

Jefferson Kaloma Mlewa v Republic [2013] KECA 502 (KLR)

Court of Appeal of Kenya
26 June 2013
EGE. M. GithinjiASAsike-MakhandiaFSF. Sichale
2,383 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a High Court criminal judgment signed by only one of two Judges is invalid, so the robbery conviction was quashed and the appeal must be heard afresh.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Senior Principal Magistrate's Court at Malindi and sentenced to death. His first appeal to the High Court at Malindi (Omondi and Odero, JJ.) was dismissed on 23rd November 2010, the High Court confirming both conviction and sentence. On second appeal to the Court of Appeal at Mombasa, the State, through the Assistant Director of Public Prosecutions, conceded the appeal on a single procedural ground: although the first appellate judgment was crafted by both Judges, it was signed and delivered by Odero, J. alone, with a space left for Omondi, J.'s signature. The Court held that section 169(1) of the Criminal Procedure Code mandatorily requires a judgment to be signed by the presiding officer(s); a judgment of a two-Judge bench signed by only one Judge is a nullity which cannot be saved by section 382 of the Code. Following Lokwachari v Republic and Paulina Amana v Republic, the Court held there was no valid judgment capable of consideration, and the merits of the conviction were therefore not examined. However, rather than acquitting the appellant, the Court applied the retrial principles in Muiruri v Republic and, pursuant to section 361(2) of the Criminal Procedure Code, directed a re-hearing of the appeal before a different bench of two Judges excluding Omondi and Odero, JJ. The appellant was ordered to remain in custody and be presented before the superior court within fourteen days, with the re-hearing to be expedited given his continuous custody since April 2008. The binding rule for lower courts is that an unsigned judgment of a two-Judge High Court bench is a nullity, and that retrial principles apply equally to re-hearings of first appeals.

Key legal issues

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01

Validity of a judgment of the High Court signed by only one of two Judges

Holding

The judgment was a nullity; there was no valid judgment capable of consideration on second appeal

Reasoning

Section 359 of the Criminal Procedure Code requires appeals from subordinate courts to be heard by two Judges of the High Court, and there is no room for a dissenting judgment in such appeals. Section 169(1) is mandatory: every judgment shall be dated and signed by the presiding officer. Although the omission appeared to be inadvertence rather than disagreement, the defect was incurable and could not be saved by section 382. The State's concession on this ground was therefore right.

p. 4
02

Whether a re-hearing of the appeal should be ordered after quashing the invalid judgment

Holding

A re-hearing before a different bench of two Judges was directed in the interests of justice

Reasoning

The robbery was committed brazenly and in broad daylight, depriving the complainant of his means of livelihood. The prosecution evidence appeared overwhelming and the offence was committed in broad daylight. Applying the Muiruri v Republic principles, and noting the appellant had been in custody for about four years, the court held that justice required a re-hearing rather than an acquittal, while excluding the two Judges who presided over the initial appeal.

p. 4

Legal principles established

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  • A judgment of a two-Judge bench of the High Court hearing a first appeal must be signed by both presiding Judges; a judgment signed by only one is a nullity and cannot be considered on further appeal
  • The requirement under section 169(1) of the Criminal Procedure Code that a judgment be signed by the presiding officer(s) is mandatory, and the defect of a missing second Judge's signature is incurable and cannot be cured by section 382 of the Criminal Procedure Code
  • The principles governing retrial apply equally to the re-hearing of an appeal in the first appellate court; a re-hearing will be ordered only where the interests of justice require it and it is unlikely to cause injustice to the accused

Court orders

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  1. 1.The appellant's appeal to the Court of Appeal is allowed
  2. 2.The conviction by the High Court is quashed
  3. 3.The sentence imposed is set aside
  4. 4.Pursuant to section 361(2) of the Criminal Procedure Code, the appeal is to be re-heard in the superior court before a different bench of two Judges excluding Omondi and Odero, JJ.
  5. 5.The appellant shall remain in prison custody and be presented before the superior court within fourteen days from the date of the judgment for a hearing date to be set
  6. 6.The hearing of the appeal should be expedited considering that the appellant has been in custody since 21st April, 2008

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 359
  • Criminal Procedure Codesection 169(1)
  • Criminal Procedure Codesection 382
  • Criminal Procedure Codesection 361(2)
  • Criminal Procedure Codesection 198
  • Criminal Procedure Codesection 150
  • Criminal Procedure Codesection 151
  • Criminal Procedure Codesection 137(d)
  • Former Constitution of Kenyasection 77(2)
  • Constitution of Kenya, 2010Article 50(2)

Cases cited (3)

  • Lokwachari v Republic
    (2005) 2 KLR 379
  • Paulina Amana vs Republic
    Eldoret Criminal Appeal No. 604 of 2010 (UR)
  • Muiruri v Republic
    [2003] KLR 552
On appeal from
High Court of Kenya at Malindi
H.C.CR.A. No. 54 of 2009
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code (section 361(2)) over an appeal from the High Court sitting as a first appellate court on a subordinate court criminal appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jefferson Kaloma Mlewa v Republic [2013] KECA 502 (KLR)", Case Analysis (2013). Criminal Appeal No. 528 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/502/eng@2013-06-26

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