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Court of AppealPartially AllowedCriminal Appeal No. 27 of 2014· [2015] KECA 531 (KLR)

John Kabiro Kimonjo v Republic [2015] KECA 531 (KLR)

Court of Appeal of Kenya
15 July 2015
PWP.N. WakiRNR.N. NambuyePKP.O. Kiage
1,984 words in judgment
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The bottom line

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Kenya's Court of Appeal voided a criminal appeal decided by a High Court bench that wrongly included an Industrial Court judge, ordering a fresh hearing.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Principal Magistrate's Court at Murang'a on three counts - attempted robbery with violence (death sentence), assault causing actual bodily harm, and possession of cannabis. His first appeal to the High Court at Nyeri (Ougo and Abuodha, JJ.) was dismissed on 19 December 2013. On second appeal to the Court of Appeal at Nyeri, the appellant raised four supplementary grounds, abandoning one, but pursued principally the jurisdictional ground that the first appellate bench was improperly constituted because one of its judges, though constitutionally appointed, was an Industrial Court Judge without mandate to hear criminal appeals. The Court, sitting as Waki, Nambuye and Kiage, JJ.A., treated the jurisdictional question as decisive. It applied its recent Malindi decision in Karisa Chengo & 2 others v Republic, which construed Articles 161(2), 162(1)(2)(b), 165(3)(5), 166 and 259 of the Constitution and held that judges of specialized courts exercise jurisdiction only in those courts. Though acknowledging in Dodhia and Jas Bir Singh Rai that it may depart from its own precedent, the Court found no new circumstances warranting departure, noting the issue was pending before the Supreme Court. It upheld the objection, declared the High Court decision a mistrial and a nullity, declined to determine the merits, and directed that the appeal be reheard expeditiously by a properly constituted bench excluding Ougo and Abuodha, JJ. No costs order was made.

Key legal issues

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01

Whether the first appellate High Court bench was properly constituted

Holding

It was not; a judge of a specialized court cannot sit on a criminal appeal in the High Court, and the resulting decision is a nullity.

Reasoning

Relying on Karisa Chengo & 2 others v Republic, the Court noted that the Constitution provides different jurisdictions for the High Court and specialized courts, and that where a judge of a specialized court is appointed, that is where his or her jurisdiction lies. A bench including such a judge in a criminal appeal contravenes the Constitution, rendering the decision void. Following the principle that courts should not perpetuate nullities, the Court declined to give effect to the High Court's decision and directed a fresh hearing before a properly constituted bench.

p. 4
02

Whether the Court of Appeal could depart from its own prior decision

Holding

It could, but on the facts there was no reason to depart from Karisa Chengo; the Court applied it.

Reasoning

Citing Dodhia v National & Grindlays Bank and its affirmation in Jas Bir Singh Rai v Tarlochan Singh Rai, the Court confirmed it may depart from its own previous decision when it appears right to do so after careful consideration. No new circumstances were shown to justify revisiting the constitutional provisions construed in Karisa Chengo, and the Court noted the issue was pending before the Supreme Court, so it followed the existing precedent.

p. 3

Legal principles established

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  • A High Court bench including a judge of a specialized court (such as the Industrial Court) is improperly constituted to hear a criminal appeal; such a decision is a nullity and must be reheard before a properly constituted bench
  • Where the decision below is a nullity, an appellate court has no jurisdiction to determine the merits arising from it

Court orders

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  1. 1.The appellant's objection that the High Court bench was improperly constituted is upheld
  2. 2.The decision of the High Court is declared a mistrial (nullity)
  3. 3.The appellant's appeal to the High Court to be heard afresh expeditiously by any properly constituted bench other than Ougo and Abuodha JJ.

Authorities

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Legislation

  • Penal Codesection 297(2)
  • Penal Codesection 251
  • Narcotic Drug and Psychotropic Substance Control Act No. 4 of 1994section 3(i)(ii)
  • Constitution of KenyaArticles 161(2), 162(1)(2)(b), 165(3)(5), 166, 259
  • Criminal Procedure Codesection 359(1)
  • Industrial Court Actsections 4 and 12
  • Interpretation and General Provisions Act Cap 2section 43

Cases cited (5)

  • Owners of the Motor Vessel "Lillian S" vs. Caltex Oil Kenya Ltd.
    [1989] KLR 1
  • Karisa Chengo & 2 others vs. Republic
    2015 eKLR
  • C.A. Dodhia vs. National & Grindlays Bank Ltd
    [1970] EA 195
  • Jas Bir 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. C. No. 107 of 2011
Jurisdiction invoked
Second appeal under the Criminal Procedure Code; jurisdictional challenge to constitution of the first appellate High Court bench under Articles 161(2), 162(1)(2)(b), 165(3)(5), 166 and 259 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "John Kabiro Kimonjo v Republic [2015] KECA 531 (KLR)", Case Analysis (2015). Criminal Appeal No. 27 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/531/eng@2015-07-15

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