Kahinga & 9 others v Republic (Criminal Appeal 1 of 2011) [2014] KECA 151 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges cannot dismiss human rights petitions without hearing both sides first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly directed himself in law in striking out the appellants' application for conservatory orders and their petition without hearing them
- 2.Whether the death sentence imposed under sections 296(2), 297(2) and 204 of the Penal Code is contrary to the Constitution for being inhuman and discriminatory
- 3.Whether the proper punishment for attempted robbery with violence under section 297(2) is a term of imprisonment not exceeding seven years
- 4.Whether death sentence is the only sentence for murder under section 204 and robbery with violence under section 296(2)
Key legal issues
#Whether the High Court Judge erred in dismissing the application and petition without hearing the parties
The appeal was allowed on the sole ground that the learned Judge failed to grant the appellants a chance to canvass their application; even though only the conservatory application was before him, he disposed of both the application and the petition in a terse ruling.
The Judge heard very brief submissions, did not hear the respondent's counsel though present, and rendered a one-and-a-half page ruling on the spot. The power to strike out is draconian, reserved for the clearest of cases, and the 2006 Rules made no provision for striking out in limine petitions brought under Rules 11 and 12. Natural justice requires parties be heard irrespective of the ultimate outcome.
Whether the Judge misapprehended the jurisdiction of the High Court under Articles 23 and 165 of the Constitution
The learned Judge ought to have been patient with the appellants to appreciate what they were seeking instead of assuming they were challenging their conviction and sentence again; the High Court has jurisdiction to hear applications for redress of violations of Bill of Rights.
The appellants invoked Article 23 as read with Article 165 vesting in the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights. The Judge's summary rejection, founded on perceived res judicata and abuse of process, pre-empted that jurisdiction without a hearing.
Constitutionality of the mandatory death sentence and sentencing under sections 204, 296(2) and 297(2) of the Penal Code
Not determined; the appeal was decided on procedural grounds and the merits of the petition left for the High Court on remittal, the Court noting the pending Supreme Court appeal in Joseph Njuguna Mwaura.
The Court expressly stated that by the nature of the appeal it could not consider the merit of the rejected application and petition; the only question was whether the Judge properly directed himself in law in striking them out. The constitutionality questions framed were those the appellants sought to litigate below.
Legal principles established
#- The power to strike out pleadings is draconian, must be exercised sparingly and only in the clearest of cases, and there is a compelling need to uphold these principles where the pleadings allege violation of human rights and fundamental freedoms.
- In matters of alleged violation of human rights there is no room for summary procedure; parties must have their day in court.
- A court has inherent jurisdiction to strike out a pleading brought in abuse of its process even without an application, but only in the clearest of cases.
Court orders
#- 1.The appeal is allowed
- 2.The decision of the High Court rendered on 8th February 2011 is reversed
- 3.The appellants' High Court Petition No. 618 filed on 22nd October 2010 is remitted to the High Court to be heard de novo by the relevant Division
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- HC. CR. MISC. 618 OF 2010
- Jurisdiction invoked
- Rule 31 of the Court of Appeal Rules (second appeal against a High Court ruling dismissing a fundamental rights petition and application for conservatory orders)
Relief refused
#Determination of the application for conservatory orders
No useful purpose would be served in determining it three years later; instead the whole petition was remitted for hearing de novo
Costs
We make no orders as to costs.
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.
The power to strike out pleadings, whether in civil or criminal proceedings, it has been repeatedly stated, is draconian and must be sparingly resorted to. It can only be exercised in the clearest of cases.
This fact strengthens our conviction that in matters of alleged violation of human rights there is no room for summary procedure.
To my mind, it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad.
It is a time old practice of the rules of natural justice for parties who seek justice to have their day in court irrespective of the ultimate decision.
In the circumstances, pursuant to Rule 31 of the Court of Appeal Rules, we reverse the decision of the High Court rendered on 8th February, 2011 and remit to it (the High Court) the appellants’ High Court Petition No. 618 filed in that court on 22nd October 2010 with the direction that it be heard de novo by the relevant Division.
We make no orders as to costs.
Issues in the judgment
#Internal numerical inconsistencies: 'eleven (12) appellants' and 'nine (10) appellants' - the parenthetical figures contradict the written words, though the arithmetic (12 minus 2 withdrawals) supports ten appellants remaining
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahinga & 9 others v Republic (Criminal Appeal 1 of 2011) [2014] KECA 151 (KLR)", Case Analysis (2014). Criminal Appeal No. 1 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/151/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.