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Court of AppealPartially AllowedCriminal Appeal No. 1 of 2011

Kahinga & 9 others v Republic (Criminal Appeal 1 of 2011) [2014] KECA 151 (KLR)

Court of Appeal
18 December 2014
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that judges cannot dismiss human rights petitions without hearing both sides first.

What this practically means

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Executive summary

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Nine appellants, convicted of capital offences under sections 204, 296(2) and 297(2) of the Penal Code and sentenced to death (sentences later commuted to life imprisonment by the President), jointly petitioned the High Court seeking a declaration that the mandatory death sentence violated their constitutional rights, and filed an application under Rule 20 of the 2006 Supervisory Jurisdiction Rules for conservatory orders suspending the sentences. Warsame, J., after very brief submissions, rendered a terse ruling dismissing both the application and the petition as misconceived, holding he had no jurisdiction, and ordered the file closed. The Court of Appeal allowed the appeal on the sole ground that the learned Judge failed to grant the appellants a chance to canvass their application. The Court held that the power to strike out pleadings is draconian, to be exercised sparingly and only in the clearest of cases; that there is a compelling need to observe this restraint where pleadings allege violation of human rights; that the 2006 Rules made no provision for striking out petitions in limine; and that in matters of alleged violation of human rights there is no room for summary procedure. Relying on Dyson v Attorney General, the Court reaffirmed the right of parties to have their day in court. By the nature of a second appeal the Court did not consider the merits of the petition, including the constitutionality of the mandatory death sentence, noting that its decision in Joseph Njuguna Mwaura was pending before the Supreme Court. Pursuant to Rule 31 of the Court of Appeal Rules, the Court reversed the High Court decision of 8th February 2011 and remitted High Court Petition No. 618 to be heard de novo by the relevant Division, making no orders as to costs. The judgment binds lower courts to refrain from summary dismissal of human rights petitions without a hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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. 3.Whether the proper punishment for attempted robbery with violence under section 297(2) is a term of imprisonment not exceeding seven years
  4. 4.Whether death sentence is the only sentence for murder under section 204 and robbery with violence under section 296(2)

Key legal issues

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01

Whether the High Court Judge erred in dismissing the application and petition without hearing the parties

Holding

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.

Reasoning

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.

p. 4
02

Whether the Judge misapprehended the jurisdiction of the High Court under Articles 23 and 165 of the Constitution

Holding

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.

Reasoning

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.

p. 3
03

Constitutionality of the mandatory death sentence and sentencing under sections 204, 296(2) and 297(2) of the Penal Code

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The decision of the High Court rendered on 8th February 2011 is reversed
  3. 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. 4.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
William Ouko
W. OukoJA
Currently serving
majority
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

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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

p. 4

Costs

We make no orders as to costs.

Quotable passages

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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.
p. 3Striking out pleadings - draconian power
This fact strengthens our conviction that in matters of alleged violation of human rights there is no room for summary procedure.
p. 3Human rights petitions - no summary dismissal
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.
p. 3Right to be heard - Dyson v Attorney General
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.
p. 3Natural justice - day in court
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.
p. 4Final orders - reversal and remittal
We make no orders as to costs.
p. 4Costs

Issues in the judgment

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minor

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

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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, "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.