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Court of AppealPartially AllowedCriminal Appeal No. 26 of 2014· [2015] KECA 104 (KLR)

Euticus Muchemi Gatundu v Republic [2015] KECA 104 (KLR)

Court of Appeal of Kenya

16 December 2015

PWP.N. Waki RNR.N. Nambuye HOH.M. Okwengu

1,980 words in judgment

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The bottom line

Kenya's Court of Appeal voided a criminal appeal decided by a bench that included a judge from a specialised court, ordering a fresh hearing.

What this practically means

Executive summary

The appellant was convicted by the Senior Principal Magistrate's Court at Mukurweini on two counts of robbery with violence and one count of rape. His first appeal to the High Court at Nyeri was heard by Ougo and Abuodha JJ and dismissed in its entirety on 6th February 2014. On second appeal, the Court of Appeal (Waki, Nambuye and Okwengu JJA) raised, sua sponte, the question whether the first appellate bench was legally constituted, given that Abuodha J was a judge of the Employment and Labour Relations Court. The respondent conceded the jurisdictional defect and sought a re-hearing before a properly constituted bench. The court applied its recent decision in Karisa Chengo & 2 others v Republic, as approved in John Kabiro Kimonjo v Republic, holding that a specialised-court judge's jurisdiction lies only in the court to which he or she was appointed, and that participation of such a judge in a criminal appeal renders the proceedings a nullity. Relying on Dodhia and Jasbir Singh Rai on precedent, the court found no basis to depart from that line of authority, especially since the question was pending before the Supreme Court. It held that the High Court's disposal of the first appeal was a mistrial if not a nullity, declined to interrogate the merits of the second appeal, downed its tools, and directed that the appellant's first appeal be heard afresh expeditiously before a properly constituted bench other than Ougo and Abuodha JJ. No costs order was made. The decision binds subordinate courts and High Court benches on the composition of appellate benches hearing criminal appeals.

Key legal issues

Constitution of the High Court bench hearing a criminal appeal with a specialised-court judge

Holding

A bench including a judge of the Employment and Labour Relations Court was not lawfully constituted to hear a criminal first appeal; the decision was a mistrial.

Reasoning

Following Karisa Chengo, courts are creatures of the Constitution; specialised-court judges' jurisdiction lies in the courts to which they are appointed. The same constitutional and statutory provisions had been construed in Karisa Chengo and approved in John Kabiro Kimonjo, and no new circumstances warranted departing from that binding line of authority per Dodhia. The court therefore adopted the reasoning of those cases.

p. 3

Perpetuation of nullities

Holding

Courts should not perpetuate illegalities or nullities; the tainted High Court decision could not stand.

Reasoning

The court adopted the National Bank of Kenya v Ndolo Ayah policy statement, holding that a decision rendered by an improperly constituted bench is a nullity which cannot be given effect, and directed a fresh hearing before a properly constituted bench.

p. 3

Jurisdiction as a threshold issue

Holding

Jurisdiction must be decided in limine; without it the court downs its tools.

Reasoning

The court raised the jurisdictional issue sua sponte, invited submissions, and applied the Owners of the Motor Vessel 'Lillian S' definition of jurisdiction, holding that a court exercising jurisdiction it does not possess produces a decision amounting to nothing.

p. 2

Legal principles established

Where a judge of a specialised court (Employment and Labour Relations Court) participates in the hearing of a criminal first appeal, the High Court bench is not properly constituted and the resulting decision is a mistrial/nullity, which must be re-heard before a properly constituted bench.

Court orders

1.Declaration that the decision of the High Court was a mistrial
2.The appellant's appeal to the High Court to be heard afresh expeditiously before a properly constituted bench other than Ougo and Abuodha JJ

Authorities

Legislation

Penal Codesection 296(2)
Sexual Offences Act No. 3 of 2006section 3(1)(a)(b)(3); section 5(1)(a)(1)(2)
Firearms Act Cap 114 Laws of Kenyasection 34(2)
Criminal Procedure Codesection 359(1)
Industrial Court Actsections 4 and 12
Interpretation and General Provisions Act Cap 2 Laws of Kenyasection 43
Constitution of KenyaArticles 161(2), 162(1)(2)(b), 165(3)(5), 166 and 259

Cases cited (6)

Owners of the Motor Vessel "Lillian S" vs. Caltex Oil Kenya Ltd.
[1989] KLR 1
Karisa Chengo & 2 others versus Republic
2015 eKLR
John Kabiro Kimonjo versus Republic
Nyeri CRA 27 of 2014 (UR)
C.A. Dodhia vs. National & Grindlays Bank Ltd
[1970] EA 195
Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others
[2007] eKLR
National Bank of Kenya Ltd. Vs. Ndolo Ayah
[2009] KLR 762

On appeal from: High Court of Kenya at Nyeri; H.C. Cr. A. No. 3 of 2004
Jurisdiction invoked: First appellate jurisdiction under the Criminal Procedure Code; jurisdictional challenge founded on Articles 161(2), 162(1)(2)(b), 165(3)(5), 166 and 259 of the Constitution

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Republic v Petitioner (Constitutional Petition seeking fresh hearing of appeal)
[2017] KEHC 8322 (KLR)13 Jan 2017applied

Cite this brief

Caselaw, "Euticus Muchemi Gatundu v Republic [2015] KECA 104 (KLR)", Case Analysis (2015). Criminal Appeal No. 26 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/104/eng@2015-12-16

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