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Court of AppealDismissedCriminal Application No. Nai 3 of 2012 (UR 3/2012)· [2013] KECA 523 (KLR)

Kingsley Chukwu v Republic (Criminal Application 3 of 2012) (Crim) [2013] KECA 523 (KLR)

Court of Appeal
21 June 2013
GKG. B. M. KariukiDMD. K. MusingaPKP. O. Kiage
1,778 words in judgment
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The bottom line

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Kenya's Supreme Court cannot hear appeals against Court of Appeal decisions finalized before the 2010 Constitution, so those judgments remain final.

What this practically means

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Executive summary

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The applicant, a Nigerian national, was convicted in 2004 by the Chief Magistrate's Court in Nairobi of trafficking in 9.605 kg of heroin and sentenced to 15 years' imprisonment. The High Court dismissed his appeal against conviction but varied the sentence, substituting a fine of approximately Kshs. 28 million in default of 12 years' imprisonment, plus a further term. His second appeal to the Court of Appeal was dismissed on 16th April 2010. By notice of motion dated 8th February 2012, he sought leave of the Court of Appeal under Rule 22(1) of the Supreme Court Rules to appeal to the Supreme Court, contending that his conviction and sentence were unconstitutional, that he was discriminated against on the basis of his nationality, and that he was denied a fair hearing. The respondent opposed, arguing that the application was an afterthought and outside Article 163(4)(a) and (b). The Court of Appeal (G. B. M. Kariuki, Musinga and Kiage JJ.A.) applied the Supreme Court's decision in Samuel Kamau Macharia v Kenya Commercial Bank, which held that Article 163(4) of the Constitution is forward-looking and confers no appellate jurisdiction over matters finalized by the Court of Appeal before the Constitution came into force on 27th August 2010. Certification could not issue even if a matter of general public importance were raised. The court dismissed the application on 21st June 2013, making no costs order.

Key legal issues

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01

Whether an applicant may obtain certification to appeal to the Supreme Court from a pre-2010 Court of Appeal judgment

Holding

No; the Supreme Court's appellate jurisdiction under Article 163(4) is not retrospective and does not extend to cases finalized by the Court of Appeal before 27th August 2010.

Reasoning

Following Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd, the court reasoned that before the 2010 Constitution the Court of Appeal was the final court and its judgments vested rights and imposed obligations on parties. Reopening such judgments on appeal to the Supreme Court would trigger unmanageable turbulence in private legal relations. Article 163(4) is therefore forward-looking and certification cannot issue for pre-promulgation decisions, even if the intended appeal raises a matter of general public importance.

p. 3

Legal principles established

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  • The Supreme Court has no appellate jurisdiction over Court of Appeal decisions finalized before the Constitution of 2010 came into force; certification to appeal cannot issue in such cases even where a matter of general public importance is raised.

Court orders

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  1. 1.Dismissal of the applicant's notice of motion dated 8th February 2012 seeking leave to appeal to the Supreme Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(1), 163(4)(a), 163(4)(b), 163(5), 140
  • Supreme Court Rules, 2012Rule 22(1), Rule 24(1)
  • Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994Section 4(a)

Cases cited (1)

  • Samuel Kamau Macharia & Another versus Kenya Commercial Bank Ltd and 2 Others
    (Application No.2 of 2012)
On appeal from
Court of Appeal
Criminal Appeal No. 257 of 2007
Jurisdiction invoked
Article 163(4) and (5) of the Constitution; Rule 22(1) and Rule 24(1) of the Supreme Court Rules 2012

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, "Kingsley Chukwu v Republic (Criminal Application 3 of 2012)  (Crim) [2013] KECA 523 (KLR)", Case Analysis (2013). Criminal Application No. Nai 3 of 2012 (UR 3/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/523/eng@2013-06-21

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